Friday, 1 July 2022

Judgements Passed Pertaining to The Rights of Sex Workers

 Judgements Passed Pertaining to The Rights of Sex Workers

As sex work is being plagued by the horrendous act of trafficking, sex workers are becoming vulnerable to a series of violence and discrimination by law enforcement. Even though prostitution is not a criminal offence, seducing any person for the sake of prostitution is illegal and so is running a brothel. The courts have upheld the rights of many people to move freely and choose any vocation on the grounds that they are adults having the fundamental right to do so. The courts have also upheld the rights of the sex workers to refuse and to seek redressal when forced. 

In contradiction, the Supreme Court in the case of State of Uttar Pradesh v. Kaushalya held that the right to movement of prostitutes may be restricted on the ground of Public Health and in the interest of Public Morals. 

The Hon’ble Supreme Court of India held that the protection that has been guaranteed to every citizen under right to life should be accorded to the sex workers as well. There was clear instruction in accordance with Article 21 of the Indian Constitution to the State Government to give recommendations on “rehabilitation of sex workers who wish to leave sex work of their own volition and to provide conducive conditions for sex workers who wish to continue working as sex workers”. Following the directive, Section 21 of the ITPA was laid down as a rule for the State Governments to build and operate protection homes, which should be regulated by licences issued. 

In 2015, the Apex court gave the 15th Interim report which contained recommendations to many provisions of the Immoral Traffic Prevention Act, 1956 so as to read them down. The said panel came into existence due to the lack of support to the sex workers to live with dignity while taking Article 21 into consideration. The analysis of the report came out to be that some provisions under the ITPA did not play in accordance with Article 21 and hindered the rights of the sex workers to live with dignity. 

These recommendations included amending the part making prostitution in public places an offence and shortening the duration of imprisonment for the same, the removal of soliciting as an offence, and lastly restricting the provision of raid and rescue to minors in prostitution and also those that are discovered in the brothels against their will. 

That very panel of the Supreme Court also provided further recommendations on the closing of brothels and the eviction of the offenders being an aspect that could be up for appeals in the higher courts. The panel suggested that the provision in the ITPA that allows magistrates to remove prostitutes from any location be repealed. 

The creation of an Advisory Committee was ordered for all the States as well as the Union Government in order to help combat the trafficking problem by the Supreme Court through the case of Vishal Jeet v. Union of India. The Supreme Court while noting the growing trafficking of young women and children for prostitution held that despite the harsh and rehabilitative provisions of legislation under several Acts, the desired result cannot be claimed to have been reached. The court further went on to order a research study and investigation into the causes and effects to remove the evils behind the illicit trafficking. While putting emphasis on the fact that this is not only a social but also a socio-economic problem, the court stated that that this should be taken in a manner that is “more preventive rather than punitive”. The court suggested that the State and the Central Government should form a machinery so that the exact implementation of the suggestions which are given could be made. 

Referring to the case of Prerna v. State of Maharashtra, it can be seen that here the court laid down a process that takes into account the protection and care of children that are trafficked in order to keep open to the possibility of rehabilitation. The Division Bench of the Bombay High Court while stating that the magistrates cannot exercise jurisdiction over a juvenile instructed that such children should either be sent to the Juvenile Justice Board or the Child Welfare Committee. Further guidelines are given by the court which deal with age verification, custody of a parent, etc. 

Furthermore, the court ruled that no advocate may appear before the Child Welfare Committee on behalf of a minor who has been rescued under ITPA or who has been discovered soliciting in a public place. An advocate representing a pimp or brothel-keeper is forbidden from representing victims rescued under the ITPA in the same case.

The High Court of Gujarat sat down to resolve a common question in the case of Sahyog Mahila Mandal & Anr. v. State of Gujrat & Ors.  that was brought forth by two petitions challenging the provisions of Section 7(1)(b), 14, and 15 of the ITPA on grounds that they violate the fundamental rights under Article 14, 19, and 21. A notification issued by the Commissioner of Police under Section 7(1)(b) of the ITPA wherein the regions within the jurisdiction of Surat's Chakla Bazaar Police Station were informed that prostitution on any premises within those limits would be regarded as illegal was also challenged.

The petition was contended on the basis that the sex workers are entitled to their right to privacy and equal protection by law and the police had caused atrocities by not following the due process. The prayer was seeking the development of a long-term rehabilitation plan that did not isolate these women from their family members. The court was of the question whether “prostitution is a form of exploitation to be abolished or an occupation to be regulated?” Further, the Court emphasised that it must steer clear of the non-legal components of the debate because what societal ideals should be reflected in prostitution is within the legislative jurisdiction. The Court cited international conventions and protocols, constitutional aspects, and ITPA provisions. 

The Hon'ble Court held that the purpose of Sections 7 and 8 of the ITPA is to prevent prostitution in public areas and further went on to rule that they cannot be discriminatory nor can they be arbitrary, and that so criminalising prostitution in public places does not violate the right to equality. The court also held the provisions of Section 14 of the ITPA to be cognizable and also empowered the Special Police Officers to make arrests without a warrant which would not be in violation of Article 14 and 21 of the Indian Constitution. 

Finally, the Hon'ble Court held that the ITPA's provisions consider trying to identify victims, rescuing them and rehabilitating them and that as a result, police officers and magistrates must undertake their duties and functions in a manner that achieves the initial goal. A suggestion was also put forward so that a committee which will handle the rehabilitation on a state level would be established. 

A panel of the Apex Court also suggested to the Election Commission to issue Voter IDs with fewer verification norms while also suggesting to the state governments to issue ration cards to the sex workers.

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