The Supreme Court in Budhadev Karmaskar v. State of West Bengal And Ors. directed that sex workers are not to be harassed either by the police or the media. Invoking its inherent powers prescribed under Article 142 of the Constitution, it clarified that these directions will hold strong unless the Union Government comes up with a legislation in this regard. It was observed that “In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role”
The Court while talking about the right to dignity to all prescribed under Article 21 of the Constitution observed that “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 given to all individuals in this country shall be kept in mind by authorities who have a duty under the Immoral Trafficking Prevention Act”.
The Top Court had formed a panel for sex workers by its order dated 19.07.2011. Three broad aspects dealt with by the panel are:-
Prevention of trafficking;
Rehabilitation of sex workers who wish to leave sex work; and
Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
The Court in its order has directed the Union and the States to ensure strict compliance of the recommendations of the panel, which are:-
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,
The State Governments may be directed to do a survey of 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.
Police should 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 newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
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 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, should carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work and the rights and obligations of the Police.