Pursuant with the case of Budhadev Karmaskar v. State of West Bengal, the Supreme Court bench comprising of Justice L. Nageswara Rao, Justice B. R. Gavai and Justice A.S. Bopanna, has exercised their powers conferred under Article 142 of the Constitution of India for issuing directions regarding upliftment of sex workers.
THE COURT DIRECTION
The appeal made by the convict was dismissed by order dated 14.02.2011 and in the same order the bench suo moto converted it into PIL and recommended that the Central and State to consider the schemes related to uplifting of the sexual workers.
The court accepted the recommendation of Constitutional Panel towards improving the standards of life, w.r.t Article 21 of the Indian Constitution, for sex workers and directed its implementation to the concerned authorities according to the order passed in matter of Budhadev Karmaskar v. State of West Bengal that accepted the recommendations of panel in year 2016.
But no further action was taken, therefore the court in order 19.05.2022 has issued the following directions which will protect sex workers till a legislation is made by the Union of India-
- Equal protection of law shall be provided to with respect of ‘age’ and ‘consent’. The police shall refrain from interfering and taking criminal action against a sex worker who is an adult and has given her/his own consent. If any sex worker makes a complaint regarding any offence, the police must take it seriously and act in accordance of law.
- If any sex worker is a victim of sexual assault, they shall be provided with proper assistance like any other sexual assault victim. Including medical assistance with respect to Section 357C of Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
- Running a brothel is unlawful but sex worker working with consent is legal. Therefore, if a raid takes place no sex worker shall be harassed, arrested, penalised or victimised.
- The State Government may direct regarding the survey of all The Immoral Traffic Prevention Act, 1956, Protection Homes so that the adult women that has been detained without their will can be reviewed and process for released in time bound manner.
- Police and other law agency shall treat all sex worker with dignity and shall not abuse them physically or verbally. As they are also human being and are entitle to be protected under law.
- The Press Council of India should be urged to issue appropriate guidelines for the media regarding not to reveal the identities of sex workers- during arrest, raid and rescue operations, whether as victims or accused. Media should not publish or telecast any photos that results in disclosure of identities. Section 354C of Indian Penal Code should be strictly enforced on media against the telecast the photos.
- Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
- The Central government and State government should include the sex workers in decision making authorities, panel or for any other recommendation, when there are 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.
- There should be educational workshop for sex worker carried out by State government and Central government through National Legal service authority. The workshop must include the legality of sex work, their rights and obligation of the police and the activities permitted or prohibited under the law and the access to judicial system for justice.
- The child of sex workers shall not be separate on the bases of parent being a sex worker. No minor should be presumed to be trafficked, if found living in brothel or with sex worker. If a sex worker claims that he/she to be her son/daughter, test can be done to determine the claim.
- Direction to Unique Identification Authority of India (UIDAI), for waiving off rules regarding issuance of Aadhar Card. UIDAI proposed that sex worker who are on the NACO’s list and have applied for Aadhar card and are unable to submit proof of residence, can issue Aadhar card provided that the Gazetted Officer at NACO or State Health Department is submitted a ‘proforma certificate’ and is certified the particulars of the applicants. There was suggestion by the six workers, they are as following-
- The Gazetted Officer of the State Health Department is unable to furnish proof of residence it should be specifically designated as,” the project director of the State AIDS Control Society or Her/ his nominee”
- The Gazette officer’s, name and designation who is authorised to must to submit ‘proforma certificate’ must be publicized on the website.
- The procedure to apply for Aadhar card must be publicized by the NACO and the State AIDS Control Societies.
- There should be no breach of confidentiality in the process, no disclosure of Aadhar enrolment number that identity the applicant or the card holder as sex worker.
- The process is not restricted to sex worker listed on NACO but also to the sex workers that are identified by CBO.
According to order dated 19-07-2011, a Constitutional panel was made consisting Mr. Pradip Ghosh as the Chairman, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan to assist and advise the Court for giving suitable directions in the matter-
The terms of reference made to the panel were:
(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.
The third term was further re-defined by adding “with respect to Article 21 of the Indian Constitution” that states every person have a fundamental right to live with dignity and human decency. The recommendation of the panel was to give –
- Direction to the State government and local authorities to treat the sex worker as a special person category for the issuance of ration card and relaxing the rigours of the rules and requirement regarding the verification of the address and mentioning of their profession.
- Direction to the Central government and Election Commission regarding the issuance of voter identity card to sex workers in relaxation of rules/ requirements without insisting on the strict proof of address and without specifying their profession on the card.
- Direction to the Central government and State Government to make sure that the children of the sex worker are getting admitted in appropriate classes in the government schools and schools sponsored by government and the school run by municipal and district level authorities. Their rights are not hampered due to their impaired social status.
- Direction to the Central government to widen and alter the UJWALA scheme within period of 6 month from the date of order.
- In the present case, the accused Budhadev Karmaskar has brutally raped deceased who was a sex worker. The High court of Calcutta convicted the accused and sentenced him life imprisonment.
- An appeal was filed in the Supreme court against the order of High court.
The order regarding the PIL was passed on date 19 May 2022 by the Supreme court to implement the court direction until further legislation is introduced for the upliftment of sex worker.