IN THE SUPREME COURT OF INDIA

Criminal Appeal No(s).135/2010

BUDHADEV KARMASKAR ———- Appellant(s)

vs

THE STATE OF WEST BENGAL & ORS. Respondent(s) 

(I.A NO. 80140/2020)

In May 2022, the Hon’ble Supreme Court exercised its power under Article 142 of the Indian Constitution and passed an order recognizing prostitution / sex work as a profession and passed certain directions in respect of rehabilitation of sex workers and related measures. Article 142 of the Constitution of India empowers the Supreme Court to pass any order to ensure justice in any matter pending before it. 

Background 

1. In July 2011, a panel was constituted by the Supreme Court with eminent lawyers and social / human rights activists to deliberate upon the following:
   – Prevention of trafficking,
   – Rehabilitation of sex workers who wish to leave sex work,
   – Conditions conducive for sex workers who wish to continue working as sex workers with dignity. This point was modified in July 2012 to ensure conditions conducive to sex workers to live with dignity in accordance with provisions of Article 21 of the Constitution.  
2. The panel submitted its recommendations to the Hon’ble SC and the Central government. In 2016, when the matter came up for hearing, the SC was informed that the Central government had published legislation based on recommendations of the panel.
3. Despite the draft legislation being published in 2016, the Union of India represented before the SC that the Bill is on the anvil. However, it is yet to take concrete shape in the present day.
4. Therefore, the Hon’ble exercise its powers under Article 142 of the Constitution to issue certain directions which would hold good till a legislation is made by the Government. 
5. The directions issued by the Hon’ble relate only to the rehabilitation measures in respect of sex workers and other connected issues.

Key recommendations made by the panel – Directions made by the Apex Court

1. Criminal law to be applied equally to sex workers
   (i) Criminal law must apply equally in all cases based on age and consent. If a sex worker is an adult and participating with consent, then the police shall not interfere and take criminal action. Voluntary sex work is not illegal. Running brothels is unlawful.
   (ii) Sex workers who are victims of sexual assault should be provided equal rights and access to medical and legal facilities like other citizens.
   
2.  Police force to be sensitized in their behaviour towards sex workers
   The police who regularly deal with sex workers should be sensitized about the fact that sex workers are entitled to same human and other basic rights under the Constitution like all other citizens. Violence and brutality cannot be meted out on them. They should be treated with dignity.
3. Issue guidelines to media for proper handling of information relating to sex workers.
   The Press Council of India should be urged to issue appropriate guidelines for the way the media (including electronic media) handles information relating to sex workers during a raid(s), rescue and or arrest. Care should be taken to ensure that their photos and details are not revealed or made public. Section 354 IPC (Voyeurism) should be strictly enforced against the media.
4. Safety measures not to be considered an offence
   Measures such as use of condoms etc., resorted to by sex workers shall not be considered an offence or evidence of commission of crime.
5. Inclusion and awareness of welfare /rehabilitation schemes
   Governments must include and involve sex workers / their representatives in decision making, formulating, and implementing and reform / rehabilitation program for sex workers, especially for those who seek to come out of the profession. Further awareness programs for creating awareness amongst sex workers of their legal rights.
6. Rights of children of sex workers
   No child or children of sex workers can be separated from their mother merely because the mother is engaged in sex work. It is important for enforcement authorities to be sensitized that such children by merely living in brothels should not be presumed to be engaged in sex work themselves or human trafficked. Minors should not be separated from their mother.
7. Eligibility to be issued Aadhar card
   Sex workers are eligible to be issued Aadhar card(s). Since it is difficult to prove their place of residence, the card shall be issued based on a proforma certificate issued by UIDAI   Project Director of the State Aids Control Society, along with Aadhar enrolment form/application. Strict confidentiality shall be maintained. The Aadhar shall not contain any information or code that would identify the card holder as sex worker.

The Union of India (UOI) represented by the Additional Solicitor General informed that while most of the recommendations were acceptable, the UOI had reservations recommendation relating to de-criminalizing voluntary sex work. The Hon’ble has directed the UOI to give its response to the panel recommendations. The matter shall be taken up in July 2022. 

The Path Ahead

Prostitution / sex work is considered to be the oldest profession in the world. It is only in the last few years that India has begun legally recognizing/acknowledging sex work as a profession. It is only when the governments, enforcement agencies and society are sensitized, that sex work can be recognized as a profession like any other. 

Full text of Order:

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