Sunitha Krishnan | Court did not legitimise sex work; focus on women's rehab

Several news articles have reported that a May 2022 Supreme Court ruling recognised sex work as a profession. Did it really?

The origin of this ruling can be traced back to 2011 following the murder of a woman in prostitution by a customer in Sonagachi, Kolkata. While upholding the conviction, the Supreme Court decided suo motu to convert the case into a PIL (public interest litigation) in order to look into the rehabilitation of women in prostitution.

Since its first interim order in February 2011, the focus of this bench has been on how to provide the women with exit options through livelihood generation. The court went on to constitute a panel headed by an advocate to look into the various possibilities.

So what happened in these 11 years? Among other steps taken, the panel proposed a national survey of all women in the flesh trade and nationwide consultations with stakeholders. When the terms of reference were being formulated, three items were put forth — (a) prevention of trafficking; (b) rehabilitation of women who want to exit; and (c) conditions conducive to living with dignity as per the provisions of Article 21 of the Constitution.

The panel held a series of consultations with everyone, including groups working on targeted intervention with women in prostitution on condom promotion and other harm reduction strategies.

As someone closely watching the work of the panel, I can say that in the years since it was constituted till the time it submitted its final report, the main mandate of the panel has been lost. It only focused on the areas where the system had failed — the situation of adult women who were rescued, the poor functioning of protection homes functioning under the Immoral Traffic (Prevention) Act, 1956, and how the adult woman in prostitution is a potential independent labour entity.

In May 2022, when this case came up for hearing, from among the various recommendations made in the report only ten were picked up for discussion. Of the 10, four were kept aside on the ground that the Government of India had not agreed to them. Only six were thus passed by the Supreme Court. Those were:
    1. A sex worker who is sexually assaulted should be given all facilities due to a victim of sexual assault.
    2. State governments should conduct a survey of the number of adult women detained in protection homes against their will. They should be released in a time-bound manner.
    3. Police officers should be trained to treat sex workers with dignity.
    4. The media should be sensitised to safeguard the identities of sex workers.
    5. Measures employed by sex workers such as possession of condoms were not to be construed as an offence or seen as evidence.
    6. The legal services authority should sensitise sex workers on their legal rights.

Detaining an adult woman in a home against her will is in conflict with her liberty. However, there are two points to be considered. (a) Who are the women in prostitution? Do they really have any agency when detained in a brothel? (b) What are the circumstances that compelled the woman to engage in prostitution? Where will she go after her release? Clearly, her family does not want her. She has no livelihood skills and no money. Some are foreigners illegally living in India after being trafficked. The only people such a woman knows outside of the protection home are those in the brothels. Is the panel actually suggesting that she leave the home and walk back to the brothel? What is the panel’s recommendation after her release from the protection home where “she was detained against her will”? I am not sure that the panel has addressed these questions before recommending that the women be released.

The court, on the other hand, was very clear in its direction that the Immoral Traffic (Prevention) Act, 1986, be implemented by all stakeholders stringently. It means that all aspects of prostitution (defined as sexual exploitation for commercial gains), such as soliciting, pimping, living on the earnings of prostitution, brothel-keeping, procuring a person for prostitution and detaining a person in a place of prostitution, which are all criminal offences, must be prosecuted.

Under Section 17 of this law, given the dire condition of women when they are rescued from sexual slavery, a judicial magistrate can direct that she be placed in a protection home. Their rehabilitation is a time-consuming process in which only experienced counsellors can engage. The women need medical help, intervention for substance abuse, support in accessing their documents, money and, in many cases, childcare. Mere release from a protection home does not guarantee these. Most often, it pushes them back into sexual slavery and sometimes they, too, become traffickers.

Rehabilitation of these women is challenging but not impossible. Holistic programmes that address their psycho-social needs, and impart life skills, livelihood training and employment have proved to be successful. Thousands of survivors who now live a life of dignity bear testimony to this. The frustrations expressed by those kept in protection homes for long durations is not an indication of failed rehabilitation but a reflection of the overall state of the criminal justice system and, of course, red tape.

Release from a protective home when a rehabilitation process is incomplete is an easy escape route for those seeking to avoid this challenge.