Voluntary Sex Work “Is Not Illegal”, Recommends Supreme Court Panel

The Centre in Supreme Court has raised certain reservations in respect of the recommendations made by the panel that sex workers should not be arrested or penalised or harassed or victimised as voluntary sex work is “not illegal” and only running the brothel is unlawful.

A Supreme Court-appointed panel has recommended various guidelines including one that “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.”

“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, ” the Supreme Court said while dealing with Centre reservation on certain recommendations of the panel.

The top court further observed, “It need not be gainsaid that notwithstanding the profession, every individual in this the country has a right to a dignified life under Article 21 of the Constitution of India.”

However, Additional Solicitor General Jayant Sud, submitted that the Government of India has certain reservations in respect of the recommendations that are made by the panel voluntary sex work is not illegal and only running the brothel is unlawful and not taking action against sex workers.

A bench of justices L Nageswara Rao, BR Gavai and AS Bopanna Union of India is directed

to file its response to the recommendations made by the panel within a period of six weeks and listed the matter for July 27 2022.

A panel was constituted with Pradip Ghosh as the Chairman of the Panel, Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Saima Hasan by SC on July 19 2011.

After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report on the terms of reference.

The panel has recommended various guidelines including sex workers being entitled to equal protection of the law and 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. Also 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 the law.

The panel has recommended that 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. However, the Centre has expressed certain reservations in respect of these recommendations.

But Centre has agreed with certain guidelines recommended by the panel which include 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 and 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.

The court has directed the State Governments and Union Territories to act in strict compliance with the recommendations made by the panel and agreed upon by the Centre.

It also directed 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 the Immoral Traffic (Prevention) Act,1956. The other recommendations that are made by the panel shall be taken up after summer vacation,” the court said.

Meanwhile, UIDAI has examined the suggestions and accepted that the procedure as proposed to issue

The court also directed that 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 the Aadhar enrolment form/application.

It said that there shall be no breach of confidentiality in the process, including the assignment of any code in the Aadhar enrolment numbers that identify the cardholder as a sex worker.