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Stand of The Supreme Court on Rights of Sex Workers: The Story so far.

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

The Indian sex workers case is making the top headline these days. The recent order dated 19-05-2022 given in the case of Budhadev Karmaskar v. State of West Bengal And Ors., popular as the sex workers case the Hon’ble Apex Court has categorically recognized that the basic protection of human decency and dignity under Article 21 of the Constitution of India 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. Reliance has been placed on the earlier landmark judgments of the Court to emphasize & expound on the scope of the right to life under Article 21. Notably, this is not the first time when the Indian judiciary has held the dignity of the community of sex workers in its ruling. Two years back the Bombay High Court has held that “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.” A few years back the Delhi High Court also ruled that “simply because the victim worked as a sex worker before the incident in question doesn’t confer any right upon anyone to violate her dignity.”In a significant ruling, the Gujarat High Court has also observed that “Section 370 of the Indian Penal Code will have no application in a case wherein sex workers are engaged in prostitution of their own volition and not according to any inducement, force or coercion.” But the factor that is making the recent Budhadev Karmaskar v. State of West Bengal and Ors. Case super buzzing is the fact that this time the Court has issued significant binding guidelines to ensure that the community is being treated with dignity and not being abused. Further, to understand the depth of the case it is important to know about the history of the case along with some categorical development that has taken place in this case which is summarized right beneath.

BACKGROUND

This case was originally filed as an appeal before the Hon’ble Apex Court against the conviction order given by the Calcutta High Court in a case of the brutal murder of a sex worker living in a red light area in Calcutta in 1999. The factual matrix of the case highlights that the accused battered the head of the deceased again and again in a hideous and barbaric manner leading to putting a period on her breath, thus the Court naturally decided against the accused and the accused chose to file the criminal appeal before the Apex Court. Considering the heinous nature of the alleged crime the Hon’ble Apex Court straightforward dismissed the appeal however it later converted the case into a Public Interest Litigation suo motu by its order dated 14th February 2011 to address the problems of sex workers in the country. In its earlier orders the Bench consisting of Hon’ble Mr Markandey Katju, and Hon’ble Ma’am Gyan Sudha Misra, JJ. equivocally stated that their aim was “to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty”. The Bench observed that: “Sex workers are also human beings and no one has a right to assault or murder them. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution.’

REMARK ON PREVIOUS SIGNIFICANT ORDERS

The Apex Court has passed several orders issuing directions to the Central Government and the State Governments in this case. In its very initial order dated February 2014 the Apex Court directed the Central and the State Governments to prepare schemes for rehabilitation all over the country for prostitutes through Social Welfare Boards along with preparing schemes for giving technical/vocational training to them considering their right to live with dignity under Article 21 of the Constitution of India.

Subsequently, by another order, the Court constituted a panel headed by Mr Pradip Ghosh, Senior Advocate as the Chairman to discuss various aspects of the problems relating to sex workers and submit its report. It also directed the States/Union Territories and the Union of India to carry out surveys to ascertain the number of sex workers who want rehabilitation and who would voluntarily continue in the same profession. The Apex Court categorically stated that “it is important to educate the public to present the situation of sex workers in the country in the correct light, as it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.”

Thereafter the constituted panel identified three core areas for consideration including prevention of trafficking, rehabilitation of sex workers who wish to quit sex work and conditions conducive for sex workers to live with dignity under the provisions of Article 21 of the Constitution of India and submitted various reports time to time. The Panel subsequently gave many suggestions. The emphasise was given to the point that sex workers face great difficulty in getting ration cards, voter’s identity cards or opening bank accounts thus the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others. The Court confirmed that the suggestions made by the Panel shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. On 14.09.2016 a final report along with recommendations of the Committee was placed on record. Meanwhile, also by its various orders the Court emphasized the gravity of the matter and urged the Government to place the draft legislation before the Parliament at the earliest. In the wake of the Covid-19 outbreak that has caused severe disruption in normal life, it was realized that the class of sex workers fall under the list of vulnerable classes being adversely hit by the pandemic. Thus, the Court issued a direction for the supply of dry rescue so that the sex workers who are in dire straits can be rescued. Similarly, by order dated 10.01.2022, the Court had directed the State Governments/Union Territories to complete the process of issuance of ration cards/voter cards to all sex workers expeditiously.

PECULIARITY OF THE RECENT ORDER

By its very recent order, the Court has taken note of the periodical adjournments so taken by the Union of India in laying down a dedicated Bill. Thus, to fulfil the existing gap in the legal framework exercising its particular powers conferred under Article 142 of the Constitution of India the Court has passed six binding directions to be in force till the legislation finally comes up. Notably, the directions so issued relate only to the rehabilitation measures in respect of sex workers and other connected issues. These directions can be summed up as follows:

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 proper medico-legal care.
The State Governments were directed to survey 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 police and other law enforcement agencies were directed to be sensitised towards the rights of sex workers and were directed to treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
The Press Council of India was directed to issue appropriate guidelines to protect the identities of sex workers, during arrest, raid and rescue operations. Besides, the strict enforcement of newly introduced Section 354C, IPC which makes voyeurism a criminal offence, was directed to be extended against electronic media as well.
Measures that sex workers employ for their health and safety such as the use of condoms, should neither be construed as offences nor seen as evidence of the commission of an offence.
The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, are directed to carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. It was also directed that the 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.

Notably, it was directed to the State Governments/ UTs to act in strict compliance with the above recommendations made.

HAS THE APEX COURT RECOGNIZED SEX WORK AS A PROFESSION?

The Apex Court in its recent order has categorically held “that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21. 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”. Now, the controversial question here is whether the use of the term “profession” here implies recognition of sex work as a profession. Notably, the term profession has been used time and again in the earlier order of the Apex Court as well. But this cannot be termed as recognition of sex work as a profession. In this regard, the Court has clarified in one of its orders stating that “this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner.” Reportedly, on this issue, Tripti Tandon, advocate for the Durbar Mahila Samanwaya Committee and Usha Cooperative, which are parties fighting for the rights of sex workers, stated that the order “does not recognise or have the effect of recognising sex work as a ‘profession’”. Here, it needs to be clarified that from one perspective recognition of prostitution as legitimate work reinforces women’s position as subordinate or sexual objects for men. Having said this, one also needs to be mindful of the fact that the judiciary of this Country in a plethora of judgements has affirmed the stand that voluntary sex is not illegal. Thus, no reason exists to regard prostitutes as criminals and maltreat them.

THE WAY AHEAD

Notably, the matter is yet pending before the Hon’ble Apex Court and is listed on 27.07.2022. The Court has strictly directed that the Union of India file its response to the recommendations made by the panel within six weeks. Let us hope that the Government come up with some positive response and the class of sex-worker get dedicated legislation for the protection of their life and dignity super soon. May the current discussion of the law eliminate the moral hypocrisy and class discrimination surrounding the class of sex workers.

08/12/2024 0 comments 24 views

Tribulation Of Innocent Hands

by Guest Author 08/12/2024

written by Guest Author

By Advocate Meenu Padha; Co- Authors – Tavleen Kaur & Vinayak Sonkar

India needs an instant nationwide awareness and campaigns against the child labour to protect and safeguard children from the economic and social consequences which has been faced due to Covid-19 crisis and lockdowns. Although some of us are practicing social distancing and actively working from home in the hope of a much better tomorrow, there are still a large number of children who may be victims of seemingly positive measures. One effect is the increase in the number of child labour. For many children, the Covid-19 crisis means little or no education due to poverty or less means of technology which will ultimately lead them to lag behind their peers. This will prompt a large number of children to stop learning even after we return to “normalcy” post COVID. Many children who are not in school will embroil themselves in child labour. In the two waves of Covid-19 in India, lakhs of men and women, many of whom did not have stable jobs and depended on daily wages, became unemployed or faced low income which had a spiralling effect on their children. Due to lockdown, the schools are unable to run physically and only a few people can access or receive online education. In the first wave of Covid19 in 2020, more than three-fourth of children did not have access to online learning facility and more than half of the children did not have access to any learning materials. The increasing anxiety of parents, shortage of learning material, low income and non-access to online education, all together has led to an increase in child labour.

The epidemic is clearly appearing to be a child rights crisis, which is increasing the risk of child labour, because more families are falling into extreme poverty. As stated by the United Nations Organisation, 160 million of child labour cases have increased to 8.4 million over the consecutive four years and Covid-19 has been a major contributor to this. Children from poor and disadvantaged families in India are now at a greater risk such as dropping out of school and being forced to work. Lakhs of families in emerging and developing countries are employed as daily workers in the informal sector (rickshaw drivers, construction workers, street vendors, workers in small factories, etc.). In particular, they have lost revenue due to the overwhelming effects of the global lockdown and the pandemic. The sharp decline in income means that families cannot afford basic necessities or money for children’s health care or education. In the formal sector as well, factory closures in countless countries have led to massive layoffs and loss of income, with major consequences being faced by lakhs of workers and their families. As adults are at a higher risk of contracting the coronavirus than children, the ultimate pressure is increasing upon children specially in poor families, to take the whole responsibility of family and bridge the gap of basic necessity. Since the production base is still looking for the cheapest labour, children are considered to be a very cheap option for such labours and work to meet their demands. Even before the epidemic, the figures for child labour in India were dismal. According to the Census 2011 statistics, the overall number of child labourers in India between the ages of 5 and 14 is 4.35 million (major workers) and 5.76 million (marginal workers), for a total of 10.11 million. Furthermore, there are 22.87 million teenage labourers in India, bringing the total (in the age bracket of 5-18 years) to about 33 million.

In addition to child labour, there are myriad facets of this problem which both result from child labour and also contribute to it. As per the National Crime Records Bureau, in India, one child disappears every eight minutes. India also has the highest child trafficking cases. Children are sometimes removed from their homes to be purchased and sold in the market. In other situations, youngsters are duped into falling into the hands of traffickers by being offered a job, only to be enslaved upon arrival. There are many children trafficked for a variety of causes, including work, begging, and sexual exploitation. Because of the nature of this crime, it is both difficult to trace these children and also prevent their exploitation effectively due to weak law enforcement. While we have an estimate of the issue, understanding its exact scope, and getting ascertainable numbers is very hard. Though the majority of child trafficking happens within the nation, a considerable number of children are trafficked from Nepal and Bangladesh.

Child trafficking is caused by a variety of factors, the most common of which are poverty, ineffective law enforcement, and a lack of high-quality public education. The traffickers that take advantage of children can be from another area in India, or could even know the child personally. Children who return home after being trafficked are typically shunned by their communities rather than welcomed. Poverty, a lack of education, and the need to financially support their family are some of the core causes of child trafficking in India. India’s unemployment rate is quite high, with the United Nations Development Programme estimating it to be 3.5 percent. Furthermore, there aren’t a lot of income opportunities. When youngsters are given the opportunity to labour, they are more likely to be exploited. Children in poverty are frequently compelled to trade sex in exchange for a place to live or food to eat. Some parents have even been compelled to sell their children to traffickers in order to get out of poverty or pay off debts. Gangs frequently traffic children and compel them to beg on the streets. Contemporary cases of begging can be seen in most of the metropolises. Not only are these children being forced to beg for money, but a significant number of those on the streets have had gang leaders forcefully remove their limbs or even pour acid into their eyes to blind them. Those children who are injured tend to make more money by invoking the empathy of the people, which is why they are often abused in this way. Organ trafficking is also widespread, with traffickers tricking or forcing minors to give up their organs.

As per UNICEF, over 300,000 children under the age of 18 are presently being exploited in more than 30 violent situations throughout the world. While the bulk of child soldiers are aged 15 to 18, some are as young as 7 or 8 years old. A huge number of youngsters are kidnapped and forced to serve as soldiers. Others work as porters, chefs, guards, servants, messengers, and spies. Many of these young soldiers have been sexually assaulted, which frequently results in unplanned pregnancies and sexually transmitted illnesses. Some youngsters have been coerced into carrying out crimes against their families and communities. A lot of children are also made to steal, snatch, kill with a mindset that it is an essential for their living .

Currently, 152 million youngsters, 64 million girls and 88 million boys, labour across the world. This represents nearly one-tenth of all children worldwide. There are about 10 million youngsters in India who are actively engaged in or pursuing employment. Despite considerable attempts done in recent years by the UN, ILO, and individual nations like India, this remains the case. Failure to minimize the number of minors exploited in job circumstances is due to the socio-cultural fabric that allows it to happen and condones the offence, as well as the enormous demand for inexpensive child labour in agricultural, mining, carpet-weaving, garment, brick kiln, and other sectors, as well as the pervasive poverty that continues to be both a cause and a function of child labour.

Selling of minor girls for prostitution is a big subject of concern. These minor girls are syndicated to enormous abuses one cannot even imagine. They are molested, harassed, raped, exploited, stalked, beaten and many more injuries are caused to those small teeny bodies which are sabotaged with cigars, burns, wounds and blood through their legs. While they feel the pain in the earlier years, in later years, girls come to accept it as their fate.

They perceive it as a way of living and consider sexual abuse as a necessary exchange for drugs, food, shelter, protection and other basics of life. Children who are exploited for commercial sex are subjected to child pornography and child prostitution transactions. Commercial sexual exploitation (CSE) of women and children earns around $400 million USD each year in Mumbai alone. According to the Ministry of Women and Child Development (MWCD), there are around three million prostitutes in the nation, with an estimated 40% of them being youngsters, since there is an increasing desire for extremely young girls to be initiated into prostitution according to customer preferences. Sexual exploitation has many serious implications for these youngsters.

Now the main question which comes up every now and then is – Will the government and general public take strong steps to prevent the abuse of the children and stop child labour and child trafficking?

On a national level, human trafficking is expressly prohibited in Article 23 of the Indian Constitution. To combat the issue of child trafficking, the Indian government has also passed further legislation and modified the Indian Penal Code (IPC). The Immoral Traffic (Prevention) Act of 1986 (ITPA) amends the Suppression of Immoral Traffic in Women and Girls Act of 1956. (SITA). Human trafficking for prostitution was deemed illegal by SITA, and legal action was detailed for anybody participating in human trafficking in any capacity. ITPA made laws friendlier towards the victim. ITPA also created a system to rehabilitate victims of trafficking and prevent them from bring trafficked again. In 2013, IPC was amended to create new provisions to address Trafficking in India that is more in accordance with the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Particularly Women and Children. State governments have also been observed taking steps to combat child trafficking by attempting to create systems and regulations at the state level. Non-governmental organisations that strive to solve various parts of this issue fill up any gaps in the execution of plans and regulations.

Although India is regarded as a centre for human trafficking, the Indian government places little emphasis on the issue. Hence the way in which the current legal system operates to address child labour in India can be considered as coming into direct conflict with the trend of independent child migration that is seen across the country. Therefore, legal measures are not enough. Every person needs to understand the gravity of this issue, make themselves aware, and keep their eyes and minds open, to help the government where ever possible in tracking the cases of child labour and preventing it.

08/12/2024 0 comments 25 views

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