The Supreme Court Order delivered by the bench of the retiring Justice L. Nageswara Rao along with his brother Judges Justices BR Gavai and AS Bopanna on 19th May 2022 in the matter Budhadev Karmaskar Vs. the State of West Bengal and others, has unleashed many legal issues which may create practical problems for the practitioners of the Criminal Justice and Juvenile Justice systems besides all others dealing with the commercial Sex Workers and the children connected to this so-called ‘Profession’.?

The Hon’ble Supreme Court has now recognized Sex Work as ‘Profession’ and that any person who is into Sex Work cannot be penalised. Supreme Court has issued this order or direction exercising its powers under Article 142 of the Constitution while interpreting Article 21 for the welfare of the Sex Workers. However, if the Supreme court legally recognises Sex Work as a profession, then this may have very serious consequences. Article 19(1)(g) of the Constitution of India guarantees that all citizens shall have the right to practice any profession subject to reasonable restrictions imposed by the state. In the Supreme Court case Sodan Singh v. New Delhi Municipal Committee (1989 SCR (3)1038) the constitutional expression of Profession has been defined as follows –?

“Profession” means an occupation carried on by a person by virtue of his personal and specialised qualifications, training or skill. The word “occupation? has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. “Trade” in its wider sense includes any bargain or sale, any occupation or business carried on for subsistence or profit.?

No doubt, sex work or the dirty word ‘Prostitution’ which has been inappropriately considered to be the ‘Oldest Profession’ is defined under Section 2(f) of The Immoral Traffic Prevention Act (ITP Act) 1956??as “ the sexual exploitation or abuse of persons for commercial purposes, and the expression “Prostitute” shall be construed accordingly”. Can any ‘Profession’, defined as above by the Hon’ble Supreme Court themselves which presupposes a job or specialized occupation for earning or livelihood, like teachers, lawyers, doctors or anyone having skill etc, be legally permitted to have?sexual exploitation or abuse for a livelihood, dignified or otherwise as the legal intent or elements for the same??

The Hon’ble Supreme Court has cited the landmark cases of Maneka Gandhi vs. Union of India and Francis Coralie Mullin vs. Administrator Union Territory of Delhi with reference to Articles 14, 19 and 21 of the Constitution of India, telling how these Articles had acquired a status and sweep ‘owing to the full potential breathed by them’. Observing that “the right to live goes far beyond the bare necessities like adequate nutrition, clothing and shelter and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self ”, the Court has most appropriately further ruled, “this basic protection of human dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed from the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children”?
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In this context the actual implications in terms of the enforcement of the other prevalent laws, particularly the Immoral Traffic Prevention (ITP) Act, 1956 and the Juvenile Justice (Care and Protection of Children) (JJ) Act 2000/2015, in the light of the following direction given by the Hon’ble Court needs to be examined. The actual order reads, “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 Immoral Traffic (Prevention) Act, 1956”

The above direction is given by the Supreme Court with reference to a panel constituted on 19th July 2011 in the matter Usha Multi-purpose Cooperative Society represented by the Senior Advocate Jayant Bhushan who is the counsel in this case as well. The terms of reference for the said Panel included, 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 as sex workers with dignity.?

The relevant portion of the order in the present case reads, “The directions that are issued today relate only to the rehabilitation measures in respect of sex workers and other connected issues. The panel has recommended in respect of the third term of reference in the following terms: (1) Sex Workers are entitled to equal protection of law. Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’. 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”.?

This portion of the order appears to be the recommendation of the panel in respect of the third term of reference and not the direction of the Court, as such, since the implementation of certain provisions of the ITP Act will have to be stopped in case it is construed as part of the order. For example, read along with the definition of the ‘prostitution’ and ‘prostitute’ under section 2(f) of the ITP Act the penal provisions like the Section 4 or Section 8 of the ITP Act which make any person including the sex worker liable for criminal action while ‘living on the earnings of prostitution’ or ‘for seducing or soliciting for purpose of prostitution’. These and several other provisions of the law are not connected to the rehabilitation of the sex workers and form part of the hardcore criminal acts which the enforcement agency i.e., the Police will have to implement so long as they remain part of the Statute under operation.?

Many sex workers and their collectives across the country have welcomed the directions of the Supreme Court considering points, such as ‘age’ and ‘consent’ presuming as if all women are willing to join this so-called profession of sex workers, thus they are consenting and are in the age-group legally entitled to exercise their free choice. As practising social workers and police officers who have worked in the field and closely investigated the cases, we understand the circumstances of extreme hardships suffered by the women and children, most of whom are forced and tortured inhumanly to become sex workers. The process through which ordinary helpless women and children are drawn into this horrendous organized crime world-over, more prominently in poor countries like India, appears to have been lost sight of while creating an opinion towards legalizing this?mother of many serious crimes.?

Besides the application of Sections 3 and 4, the seriousness of this organized crime as provided under Section 5 of the ITP Act needs to be appreciated for the protection of the weak and vulnerable. Procuring, inducing and taking of such persons, mostly being the helpless women and children, with or without consent, for the purpose of prostitution, obviously through trafficking,?constitute an extremely serious crime, providing punishment from not less than 7 years going up to life imprisonment. It’s not clear at all how could the police be refrained from taking cognizance of any criminal action presuming consent as against force, inducement and coercion which happen to be the concomitant features of all sex work which are never purely out of choices exercised even by the adult and so-called willing women, let alone children. Regarding the raids in the brothels (Kothas), mostly run by the older and veterans among sex workers, the presumption that since the women are in ‘voluntary sex work’ and only the brothels are unlawful, they should not be arrested, penalised and victimised, appears to be an inappropriate understanding of the actual situation.?

It is borne out of all studies, crime figures and our experience as law enforcement officers and social workers running programs with the families of the commercial sex workers that nearly 25% of those who are sucked into the commercial sex trade and the brothels, happen to be the children less than 18 years of age. My own experience in my capacity as the Dy. Commissioner of Police Crime of Delhi Police as a follow-up search to the Supreme Court directions in the landmark cases Gaurav Jain vs. UOI & Vishaljeet vs. the UOI into Delhi’s GB Road or Shraddhanand Marg Red light Area, 111 children (79 girls & 33 boys) were rescued and it was found during the enquiries by the-then Juvenile??Welfare Board that over 90 of them were, presumably, kidnapped and trafficked having no parents living in the brothels. It was extremely difficult to distinguish between the children of the sex workers and those brought in the red-light area through kidnapping and sex trafficking.?

The Hon’ble Court has ordered, “As already recommended in the 6th interim Report ( of the Panel) dated 22.03.2012, no child should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with the sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he or she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”?

Such a blanket order practically refrains any legal action, even the basic procedures of investigation as laid down under Cr.PC and under the Juvenile Justice (Care and Protection of Children) Act 2000/2015 besides the relevant legal provisions under the IPC, POCSO to safeguard the children found in brothels and with the sex workers, may be fraught with serious consequences jeopardising the safety and well-being of the children. In any case, the order runs contrary to the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000/2021, as reproduced hereunder:

Section 2 (14) “child in need of care and protection (CNCP)” means a child...(iii) who resides with a person (whether a guardian of the child or not) and such person - (b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; ...or (v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child;...viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or (ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or (x) who is being or is likely to be abused for unconscionable gains;?

There can be no dispute about all the children found inside any brothel or found to be living with the sex workers to be categorised as the CNCP, as defined within the JJ Act- which is the basic and holistic law for the ‘care, protection, welfare, development, rehabilitation and social reintegration’ of all types of Children requiring the intervention of this law as the protective umbrella.??These are the CNCP (Children in Need of Care and Protection) and CCL (Children in Conflict with Law) for whom the JJ Act and the Rules formulated thereunder create a Juvenile Justice system running parallel to the Criminal justice system.?

This law creates JJB (Juvenile Justice Board) and the CWC (Child Welfare Committee) in every district of the country under sections 4 and 27 of the Act, fully empowering the CWC to take care of the CNCP including the Children connected to brothels and sex workers from rescue to rehabilitation. The Police officer and the Special Juvenile Police Unit constituted in each district is just one of the many agencies and persons to produce the CNCP before the CWC under Section 31 of the Act, like Childline (1098) services and Voluntary organisations, Child Welfare Officer or Probation Officer, Social Worker or a public-spirited citizen, nurse, doctor, hospital, even the Child himself. It is evident that the order and direction issued by the Hon’ble Court may not be operable alongside these elaborate provisions relating to the children.??Also, Section 9 of the JJ Act states the definition of??“best interest of the child”, which means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.

The Hon’ble Supreme Court also observes in the judgement within Gaurav Jain vs. Union of India & Ors?1989 &1997,??“Children of prostitutes?should not be permitted to live in an inferno and the undesirable surroundings of prostitute?homes. This is particularly for young girls whose bodies and minds are likely to be abused with growing age for being admitted into the profession of their mothers. While separate schools and hostels for?children of prostitutes?are not desirable, accommodation in hostels and reformatory homes should be adequately made available to help segregate these children from their mothers living in prostitute homes?as soon as they are identified. These children must be allowed to mingle with others. These children have the right to equality of opportunity, dignity and care, protection and rehabilitation by the society with both hands open to bring them into the mainstream of social life without pre-stigma affixed on them for no fault of their own. The Convention on the Right of the Child, the Fundamental Rights in Part III of the Constitution, UDHR, the Directive Principles of the State Policy are equally made available and made meaningful instruments and means to ameliorate their conditions - social, educational, economic and cultural, and to bring them into the social stream by giving them the same opportunities as had by other children.”

(Amod?K Kanth?is a Former IPS Officer, Ex-Chairperson, DCPCR and Founder General Secretary of Prayas Juvenile Aid Centre (JAC) Society.?Views expressed in this article are personal and may not necessarily reflect the views of Outlook Magazine)
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