Wednesday 25 May 2022

Supreme Court guidelines for rehabilitation of Sex workers

 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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