'Sex Workers Can't Be Harassed, Can't Be Forced To Stay In Shelter Homes' : Supreme Court Asks Centre & Amicus To Finalize Proposed Guidelines

A Bench comprising Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna asked all concerned to reach consensus regarding the issue of sex workers being inordinately and forcefully sent to shelter homes. It reckoned that once rescued they can be produced before a Magistrate, who will ensure at that stage if the sex worker had consented to the activity or not. In the interim, if required they can be put in the shelter homes. However, the 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 homes.

Mr. Sud raised some objections to the first Recommendation which reads 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.

He suggested that it is very tricky to determine whether the sex worker had consented voluntarily or was forced, influenced and coerced, at the very threshold. An enquiry into the same needs to be undertaken. He also averred that the sex workers are not arrested, but merely produced before the Magistrate and thereafter put in shelter homes for safekeeping.

"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."

Considering his concern, Justice Rao stated -

"You must have read the report. It takes into account the ground reality. The manner in which sex workers are treated by police. We take into account what you are saying, whether the question of consent can be decided as that stage. But it cannot be that they are treated differently from other criminals."

Mr. Sud reiterated -

"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."

Justice Rao stated that even if Mr. Sud's submission is accepted, the sex workers ought not to be harassed.

"Even if we assume you are correct, but why harass a victim? Why unnecessarily mistreat her?"

Amicus Curiae, Mr. Jayant Bhushan submitted that if Mr. Sud's submission that consent might not be voluntary, is to be assumed to be correct, it is all the more reason not to arrest the sex worker.

"If there is no consent on her part, how can they arrest her?"

Mr. Sud submitted that since the sex workers are trafficked from across the country, they might not have any shelter or might not know anyone in the city where they are practising the trade. Given their vulnerability it is easier to threaten them into consenting. Therefore, if the recommendation is accepted, to refrain from investigation, he indicated, it would not be possible for the police to find out if the consent was voluntary or not. Once rescued she is sent to a home, which is not a custody, he clarified.

"In most of the cases, they are destitute. Even if she is a consenting party, because she has nowhere to go, she is one of the most amenable to threat or pressure. So she is sent to a home, which is not custody. That is her safekeeping. If police are refrained from interfering then how will police investigate?"

Mr. Bhushan, who had consulted women in the sex trade, apprised the Bench that forcibly taking sex workers to a home and confining them there is a huge concern.

"If at all we are victims, and now we are doing it of our own consent, how is it that you forcibly put us in a home where we cannot go out. How can you confine them against their wishes?"

Justice Rao asked him to suggest an alternative place where the women can be placed after being rescued and prior to being produced before the Magistrate.

"When they are taken away from the brothel, then where do we keep them, that is what he (ASG) is saying. What do you say to that?"

Senior Advocate, Mr. Anand Grover, suggested as and when they are rescued they can be sent to protective homes. Immediately their statements regarding consent can be recorded by the Magistrate. Thereafter, they can be released from the home. He suggested that the period of stay at the said homes for the interim should be brief. He further suggested that in case of lack of legal representation, the District Legal Services Authority can be involved in the process.

Mr. Bhushan was of the view that the police can apply their mind, as and when a sex worker is rescued, regarding whether they need to be placed in a home.

"Once they have a raid, they have to apply their own mind. They cannot pick up everyone and put them in a home. Within 24 hours they need to approach and Magistrate and state why they think they are coerced."

Justices 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."

He emphasised that it should not take long for the Magistrates to verify if the sex worker has voluntarily consented or not.

Mr. Sud indicated that the process would take some time, given the parents/guardian of the sex worker is issued a notice. The process is time consuming, as often incorrect addresses are provided and at times the parents/guardian refuse to come to the Court.

"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 notice is required to be issued to parents/husbands to let the sex worker, who is a major, out of the shelter/correctional homes.

"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."

Mr. Bhushan remarked on the inadequacy of these shelter homes -

"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."

Justice Rao asked Mr. Sud -

"Can you force people to stay in homes?"

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