Sex Work Legal Interventions
Tara v State,W.P. (CRL) 296/2012 before the High Court of Delhi
In response to an intervention by the Lawyers Collective in W.P. (CRL) 296/2012, the Delhi High Court overturned the forcible detention and transportation of 15 adult sex workers to Andhra Pradesh (“A.P”), terming it illegal and violative of their fundamental rights.
Delivered on 13 April 2012 by a Bench comprising Justice S. Ravindra Bhat and Justice S.P Garg, the decisioncame in the context of a raid conducted by A.P Police in GB Road, Delhi on 20 February, 2012, in which 72 persons were “rescued”. While minor girls were ostensibly treated in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000, adult women were segregated on the basis of their state of origin – namely, those originally from A.P and those not from A.P. 41 women in the latter category were released by the Metropolitan Magistrate, Tis Hazari, after giving them a hearing. However, the other 15 were directed to be taken toAnantapur district in A.P and kept in temporary detention in Nirmal Chaya/ Nari Niketan home in Delhi, contrary to their will.
The above order was challenged and the High Court stopped the Petitioners’ transit to A.P on 24 February 2012. Consequently, the women stayed in Nirmal Chaya/ Nari Niketan for over 50 days, where they were counseled against returning to sex work. The women, however, expressed their desire to live and work in Delhi and recorded statements to this effect under Section 164, Criminal Procedure Code, 1973.
On 9 April 2012, the High Court sought the views of the National Commission for Women and the Delhi State Commission for Women on offering rehabilitation, but the former’s Counsel sought to keep the “victims” in detention, till such time that their rehabilitation is designed and implemented.
Taking note of the anomalies in the procedure followed by A.P Police and the fact that the Petitioners’ were adult and not accused of any offence, the Court directed that the women be set free. In doing so, the Bench made the following important observation:
“…this Court is of the opinion that the coercive manner in which the police dealt with the victims are offensive of their rights under Articles 14 and 21 of the Constitution of India. In a rights based society like ours, the mandate of these guarantees is constant and unaltered in content without any regard to the general or any of the other traditionally perceived differences that human beings see amongst themselves. This Court also is of the opinion that the order to the extent it virtually ordered transportation, without consent, of petitioners amounts to treating them as less than human beings and belittling their dignity.”
The decision marks a first step towards the protection of rights of adult sex workers, which are often undermined in aggressive anti-trafficking measures.
Read the Delhi High Court’s decision HERE.
Budhadev Karmaskar v. State of West Bengal, Criminal Appeal No. 135 of 2010 in the Supreme Court of India
This case has arisen out of a criminal appeal in the Supreme Court wherein the accused, Budhadev Karmaskar, was convicted for murdering a sex worker in Calcutta in 1999. While dismissing the appeal and affirming the conviction in February, 2011, the Supreme Court suo moto converted the appeal into public interest litigation a on the rehabilitation of sex workers. The Court observed that “the prostitutes 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”. It further noted that“a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted 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.”
Accordingly, the Supreme Court directed “the Central Government and all the State Governments to prepare schemes for giving technical/vocational training to sex workers in all cities in India.” The Central Government and the State Governments were asked to submit their responses to the same.
Subsequently on 4th May, 2011, the Supreme Court impleaded Durbar Mahila Samanwaya Committee (DMSC), a sex worker’s organization and its affiliate, Usha Multipurpose Cooperative Society (USHA) from Kolkata, as parties to the case and sought their views on the subject of rehabilitation of sex workers. Read the affidavits filed by DMSC and USHA and an additional affidavit filed by DMSC, who are being represented in Court by the Lawyers Collective.
On 19th July 2011, the Court set up a Panel to assist and advice it. The Panel consisted of the following members:
- Mr. Pradip Ghosh, Amicus Curiae in the case and Senior Counsel who is the Chairman of the Panel
- Mr. Jayant Bhushan, Amicus Curiae and Senior Counsel,
- Usha Multipurpose Co-operative Society through its President/Secretary,
- Durbar Mahila Samanwaya Committee through its President/Secretary,
- Roshni through Ms. Saima Hasan, 152, Golf Links, New Delhi.
The Supreme Court held that “Mr. Jayant Bhushan, learned senior counsel, who is also Amicus Curiae in this case, has submitted that there are broadly three aspects of the matter :-
(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.
These aspects may be studied by the Panel and they may make suitable suggestions to the Court.”
The Court also directed the States, Union Territories and the Union of India to carry out a survey to ascertain how many sex workers wanted rehabilitation and to find out a mechanism for the same and how many of them would voluntarily continue to engage in sex work and report the findings of the survey to the Panel.
Further, on 2nd August 2011, the Supreme Court the Central Government and the State Governments to provide funds and infrastructure for the Panel to discharge its functions properly. The Court also criticized the Governments’ affidavits, as being vague and general. Instead, it wanted the States to come up with concrete results, i.e., the exact numbers of sex workers who had been offered alternative employment. Meanwhile, the Court reiterated that “any rehabilitation of the sex workers will not be coercive in any manner and it shall be voluntary on the part of the sex workers.”
Thereafter, on 24th August 2011, the Court further noted that “from a perusal of the UJWALA Scheme it appears that the Central Government has scheme only for rescued trafficked women but no scheme for those sex workers who voluntarily want to leave the sex trade. In our opinion, proper effective scheme should be prepared for such women also. In this connection, we would like to say that the Central Government scheme has placed a condition that the rescued sex workers must stay in a corrective home in order to get technical training. In our opinion, no such condition should be imposed as many sex workers are reluctant to stay in these corrective homes which they consider as virtual prison.
The Supreme Court also suggested that free legal services be provided to sex workers through the State Legal Services Authorities.
Accepting the recommendations made by the Panel, the Supreme Court by its order dated 15th September, 2011 asked the government authorities to ensure that sex workers do not face difficulties in accessing identity documents like ration cards and voter identity cards and that their children are not discriminated against in admissions in government and government-sponsored schools. In accordance with the Court’s order dated 24.08.2011, the Central Government was also directed to suitably alter and widen the Ujjawala scheme.
Thereafter, the Supreme Court in January, 2012 directed the Panel to take up the National Capital Territory of Delhi (NCT) as a model for identifying the issues involved in the rehabilitation of sex workers. In March, 2012, it also directed joint secretaries of various government departments to present their views on the questions involving rehabilitation of sex workers’ children. . In April, 2012, the Supreme Court directed the Panel to convene a joint meeting with the representatives of different government agencies including National Aids Control Organisation (NACO) on 6th May, 2012 so that “various issues for providing relief to the sex workers and their children and their rehabilitation, may be discussed in detail and solutions may also be suggested as to how these issues can be tackled, especially, those relating to the children of the sex workers.”
Meanwhile, the Panel has held several meetings from July 2011 onwards to discharge its mandate, as per the Court’s order. It has engaged with various stakeholders like NGOs, police officials, bureaucrats and sex workers and held four regional workshops and one national workshop on rehabilitation of sex workers. The Panel’s Chairman has submitted six interim reports to the Apex Court so far. The sixth interim report dated 22nd March, 2012 notes that “on rehabilitation, two views emerged:
- A rights based approach on empowering the sex workers;
- A protectionist approach in setting up protective homes or shelter homes for rescued sex workers or workers who wished to leave the profession.”
In April 2012, the Government of India filed an affidavit in the Supreme Court, expressing its concerns over the third aspect of the Panel’s mandate, i.e., creating conditions conducive for sex workers who wish to continue working as sex workers with dignity, on the ground that it would indirectly imply recognising sex work as legitimate work. The affidavit further notes that dilution of address verification procedures for facilitating identity cards for sex workers involves national security implications, as a large number of sex workers are illegal migrants from Nepal and Bangladesh.
In response, DMSC filed a counter affidavit, arguing that sex work is not illegal and that sex workers’ are entitled to participate in decisions affecting their lives.
By its order dated 26 July 2012, the Supreme Court affirmed DMSC’s membership to the Panel and modified the third terms of reference to read:- “Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”
The orders of the Supreme Court can be found at http://courtnic.nic.in/supremecourt/casestatus_new/caseno_new_alt.asp