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 recognised 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.
The directions that are issued today relate only
to the rehabilitation measures in respect of sex workers
and other connected issues. The panel has recommended in
respect of the third term of reference in the following
terms:
(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
penalised or harassed or victimised.
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.
v) It has been noticed that the attitude
of the police to sex workers is often brutal and
violent. It is as if they are a class whose
rights are not recognised. The police and other
law enforcement agencies should be sensitised to
the rights of sex workers who also enjoy all
basic human rights and other rights guaranteed in
the Constitution to all citizens. Police should
treat all sex workers with dignity and should not
abuse them, both verbally and physically, subject
them to violence or coe4rce them into any sexual
activity.
vi) The Press Council of India should be
urged to issue appropriate 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. Besides, the newly introduced Section
354C, IPC which makes voyeurism a criminal
offence, should be strictly enforced against
electronic media, in order to prohibit
telecasting photos of sex workers with their
clients in the garb of capturing the rescue
operation.
Vii) 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 commission of an offence.
Viii) 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.
ix) The Central Government and the State
Governments, through National Legal Services
Authority, State Legal Services Authority and
District Legal Services Authority, should carry
out workshops for educating the sex workers abut
their rights vis-a-vis the legality of sex work,
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.
x) 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.”
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).135/2010
BUDHADEV KARMASKAR Vs THE STATE OF WEST BENGAL & ORS.
(I.A NO. 80140/2020 APPROPRIATE ORDERS/DIRECTIONS TO BE LISTED)
Date : 19-05-2022 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE L. NAGESWARA RAO
HON'BLE MR. JUSTICE B.R. GAVAI
HON'BLE MR. JUSTICE A.S. BOPANNA
UPON hearing the counsel the Court made the following
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 India1. 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 Delhi2 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
1 (1978) 1 SCC 248
2 (1981) 1 SCC 608
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 dt. 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 recognised 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.
The directions that are issued today relate only
to the rehabilitation measures in respect of sex workers
and other connected issues. The panel has recommended in
respect of the third term of reference in the following
terms:
(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
penalised or harassed or victimised.
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.
v) It has been noticed that the attitude
of the police to sex workers is often brutal and
violent. It is as if they are a class whose
rights are not recognised. The police and other
law enforcement agencies should be sensitised to
the rights of sex workers who also enjoy all
basic human rights and other rights guaranteed in
the Constitution to all citizens. Police should
treat all sex workers with dignity and should not
abuse them, both verbally and physically, subject
them to violence or coe4rce them into any sexual
activity.
vi) The Press Council of India should be
urged to issue appropriate 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. Besides, the newly introduced Section
354C, IPC which makes voyeurism a criminal
offence, should be strictly enforced against
electronic media, in order to prohibit
telecasting photos of sex workers with their
clients in the garb of capturing the rescue
operation.
Vii) 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 commission of an offence.
Viii) 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.
ix) The Central Government and the State
Governments, through National Legal Services
Authority, State Legal Services Authority and
District Legal Services Authority, should carry
out workshops for educating the sex workers abut
their rights vis-a-vis the legality of sex work,
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.
x) 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.”
We have heard Mr. Jayant Sud, learned ASG who
submitted that the Government of India has certain
reservations in respect of the recommendations that are
made by the panel except those in paras 2,4,5,6,7 and 9.
The State Governments/ UTs are directed to act in strict
compliance of the recommendations made in paras
2,4,5,6,7,9, in addition to the implementation of the
recommendations made by the panel as mentioned above,
the competent authorities under the Immoral Traffic
(Prevention) Act, 1956 are directed to comply with the
provisions of the Act. It need not be gainsaid that
notwithstanding the profession, every individual in this
country has a right to a dignified life under Article 21
of the Constitution of India. The Constitutional
protection that is given to all individuals in this
country shall be kept in mind by the authorities who
have a duty under Immoral Traffic (Prevention) Act,1956.
The other recommendations that are made by the panel
shall be taken up after summer vacation.
List this matter on 27.07.2022.
In the meanwhile, the Union of India is directed
to file its response to the recommendations made by the
panel within a period of six weeks from today.
Mr. Anand Grover, learned senior counsel,
brought to the notice of this Court that Aadhar Cards
are not being issued to sex workers as they were unable
to produce proof of their residence. We had issued
notice to UIDAI and sought its suggestions in respect of
waiving the requirement of proof of residence for the
sex workers, to enable them to get an identity by the
issuance of Aadhar cards. In the affidavit filed by the
UIDAI, it was proposed that sex workers who are on
NACO’s list and who apply for Aadhar card but cannot
submit proof of residence, can be issued Aadhar Cards
provided a ‘proforma certificate’ is submitted by a
Gazetted Officer at NACO or the State Health Department
certifying the particulars of the applicant. The
organisations representing sex workers have made the
following suggestions for the procedure to be followed
by UIDAI:
3.1 The Gazetted Officer of the State Health
Department, who is authorized to submit the
proforma certificate for a sex worker who applies
for an Aadhar Card but is unhable to furnish
proof of residence should be specifically
designated as:- “The Project Director of the
State AIDS Cotrol Society, or her/his nominee.”
3.2 The name and designation of the Gazette
Officers who will be authorised to submit the
‘proforma certificate’ for sex workers desirous
of applying for an Aadhar Card on behalf of NACO
must be publicized on its website.
3.3 NACO and the State AIDS Control Societies
should publicize the procedure for sex workers
who wish to apply for an Aadhar Card but who
cannot furnish proof of residence through their
websites as well as through outreach under the
Targetted Intervention Programmes that they
implement.
3.4 The sample ‘proforma certificate’ submitted
by UIDAI in its Additional affidavit dated
09.02.2022 in terms of the order dated 10.01.2022
as “Annexure R-1’ on pages 5 and 6 of the said
affidavit may be made readily available on the
websites of UIDAI, NACO and State Aids Control
Societies.
3.5. There should be no breach of confidentiality
in the process, including assignment of any code
in the Aadhar enrolment numbers that identity the
applicant/holder of the card as a sex worker.
3.6 The procedure proposed by the UIDAI in its
Additional affidavit dated 09.02.2011 may not be
restricted to sex workers on the NACO list but
also extended to those who are identified by CBOs
after verification by the State Legal Services
Authority or the State AIDS control Society.
This is in line with the Hon’ble Court’s
directions to State Governments to extend dry
ration support and access to ration cards and
voter ID cards to sex workers who are not on
NACO’s list, vide orders dated 10.01.2022 and
28.02.2022.
UIDAI has examined the suggestions and accepted
that the procedure as proposed, can be followed.
In view of the aforementioned, Aadhar Cards
shall be issued to sex workers on the basis of a proforma
certificate which is issued by UIDAI and submitted by the
Gazetted Officer at NACO or the Project Director of the
State Aids Control Society, along with Aadhar enrolment
form/application. There shall be no breach of
confidentiality in the process, including assignment of
any code in the Aadhar enrolment numbers that identify
the card holder as a sex worker.
We appreciate the cooperation of Mr. Zoheb
Hossain, learned counsel appearing for the UIDAI, in
providing relief to sex workers who will have some
identity in the society.
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