Rights of voluntary adult sex workers: a choice-based and a right-based approach

Introduction

Recently, the Supreme Court of India (Bench of J.B Pardiwala and R. Mhadevan jj.) in the case of Prajwala v. Union of India[1] has laid down a multi-staged detailed Victim Protection Plan for the rescue and rehabilitation of the victims of human trafficking (especially for the purpose of commercial sexual exploitation). The Plan spelled out by the Court is based on a victim-centric approach and aims at bringing the victim at the centre stage of the rescue and rehabilitation process rather than treating them as the passive objects to be rescued.

The Court, in the Judgment, has emphasised the recognition of the rights of voluntary adult sex workers and the need to establish an appropriate framework for their protection. Therefore, this article will try to explain the stance taken by the Supreme Court in its recent judgment pertaining to the voluntary sex workers.

Is prostitution legal in India?

There is no law in India criminalizing prostitution. However, there are laws such as Immoral Traffic (Prevention) Act, 1956 (ITPA), Bharatiya Nyaya Sanhita, 2023 (BNS), The Protection of children from Sexual Offences Act, 2012 (POCSO) and Juvenile Justice Act, 2014 (JJ Act) which regulates sex work and other related activities.

Views of the Court on Section 17 of ITPA:

In its decision, the Court analysed various provisions of relevant laws dealing with commercial sexual exploitation, especially ITPA. The Court, in this case, highlighted the fact that ITPA treats all sex workers as a homogenous group. It creates a conflation between trafficking and prostitution, thus establishing a view that prostitution is always a result of such trafficking or similar offences, which is not a correct view.

Section 17 of the ITPA which provides for the intermediary custody, inquiry, protection, care, and rehabilitation related orders, includes within its wide net all those who are involved in prostitution, whether as a result of trafficking or voluntarily. Therefore, the Court emphasised a consent-based approach in its Victim Protection Plan.

A person who is involved in prostitution voluntarily must not go through the same mechanism as provided under Section 17 ITPA. The Court created a distinction between three categories of prostitution: First category is those who were trafficked and has been forced into prostitution, second includes those who were trafficked but continues in prostitution voluntarily and third category includes those who entered in prostitution by their choice.

Those who falls under the first category must be rescued and the procedure under Section 17 must be followed along with the plan spelled out in the judgment. However, in the case of second and third category persons, the principle of non-interference must be followed. It means that the voluntary adult sex workers who are found during a raid ought not to be subjected to the machinery of ITPA at the first place.

The Court held that when an adult person is produced before the Magistrate, a threshold inquiry must be conducted to determine that whether the person has been involved in sex work voluntarily, whether she wishes to be placed in long term custody and whether the person is expressing her preference voluntarily.

Further, the Court emphasised the primacy of the victim’s consent. The consent of the victim should be a governing factor in the Magistrate’s final decisions on detention and reintegration. However, there are certain situations where the principle of non-interference and primacy of the victim’s consent should not be followed. It includes situations in which the victim’s safety is at risk, or in which the consent expressed by the victim results from threat, coercion, or undue influence, so that the consent is not free.

Court on the recognition of the rights of the adult voluntary sex workers:

The Court acknowledges the fact that even if the prostitution has not been made illegal under ITPA, it has failed to provide for the protection of the voluntary adult sex workers. Although the choice of the voluntary sex workers must be respected and the principle of non-interference must be followed, however, it cannot be denied that these groups are those sections of society which are likely to face exploitation, violence, poverty, stigmatisation, social exclusion and unsafe working conditions. In such a case, there arises a need to provide them with rights and protections.

They must not be treated as groups which do not need protection merely because of the reason that they have entered prostitution by choice. The Court addresses the realities of the sex workers in the society and the stigma they face in the society. The society views their work as indecent and immoral.

Even the Courts which have given directions for their protection and safety, have used derogatory words to describe them in the judgments. The police officers who are required to provide them protection are also sometimes guided by the societal views about them.

Therefore, while pointing out these harsh realities faced by the voluntary adult sex workers, the Court called for filling the gaps that exists in the current laws regulating sex work and provide adequate protection to them.

Conclusion

From the above stance taken by the Court relating to the rights of the voluntary adult sex workers, it is clear that the Court has taken a choice-based and rights-based approach. Choice based on the sense that, at the first stage, the authorities must respect the choice of both the victims of trafficking who have been forced into prostitution and those who are voluntarily involved in it. However, if such non-interference is likely to prejudice the protection and safety of such persons, this principle can be departed from and the appropriate authorities (provided under ITPA) may interfere and provide required protection to them.

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