The recent Supreme Court directions in the Budhadev Karmasakar 135/2010 case is worrisome both in the way it is worded and the lack of application of mind in understanding ground realities.
Before I elucidate my concerns let me state what the Apex Court has reiterated regarding the existing legislation ie. The Immoral Traffic Persons Prevention Act. It has very clearly stated in its directions that the existing legislation should be implemented strictly by all states which essentially means the following will remain criminal offences:
1. Brothel keeping
2. Pimping
3. Living on the earnings of prostitution
4. Detaining a person in a place of prostitution
5. Procuring, inducing or taking a person for prostitution
While the existing legislation defines prostitution as sexual exploitation for commercial gains it is silent on whether it should be prohibited or banned. Further it is completely silent on selling sexual services independently without a pimp or a keeper which has perpetuated a notion that selling sexual services independently is not a crime in India.
Coming back to the directions of the court; brothels will be closed; pimps & keepers will be arrested and human traffickers who will bring women & girls for prostitution will be apprehended. So, this has not changed on the contrary it has to be strictly implemented by all states.
So, what is worrisome about the recent directions? Let me pick out three of the directions which are going to have long term implications.
1. Firstly, the Apex Court liberally uses the term ‘Sex Work’ and accords it subtly a status of a profession. While stating that a person selling sexual services is like any other citizen and is entitled to all rights that our constitution provides, it is somehow worded in such a way that indicates that selling sexual services is a dignified profession. Let me personally reiterate that every human being who is a citizen of this country is entitled to all rights enshrined in our constitution and that is non-negotiable. But what work is dignified and what takes away every ounce of dignity is a separate matter and needs deeper understanding on what constitutes this form of work and its impact on self.
I am deeply concerned how something which is intrinsically harmful for body, mind and soul can be dignified. It is also rather confusing as all these directions are in the context of rehabilitation of persons who are selling sexual services. If you notice I am mindfully avoiding using the term ‘sex worker’ as I do not accept this as a profession and considered it as the oldest form of sexual slavery. I can understand dignity out of the situation which is ‘rehabilitation’ but what is dignity in the situation I am unable to fathom. The learned Bench in their wisdom failed to clarify this in their direction.
2. It is universally known fact that significant number of women and girls are lured in the name of job, marriage, love and induced or forced into prostitution. It is also well known that the revenue from selling sexual services is very high, in fact it is considered low investment high profit industry and has been ranked as one of the fastest growing criminal enterprise. It is not very uncommon that the combined forces of social stigma and criminal intimidation coerces most victims to normalize the exploitation and they are easily tutored to say that they are doing it voluntarily or by their free choice. In the given situation pray tell me how will a law enforcer prime facie differentiate between a voluntary seller and trafficked person especially when all them are parroting the same lines taught to them? So, by blindly directing that the police should not touch any voluntary worker, the learned Bench has only exposed their lack of understanding of the ground realities. In my opinion what would have been more balanced position was to direct all concerned parties to come together and draw out a protocol that would help the law enforcer differentiate between a voluntary seller and a trafficked person. Even there I would think it is rather fishy if a voluntary seller is found in a brothel. If you are voluntarily selling it should be without a pimp/broker or brothel as per the law so what is voluntary worker doing with a pimp or a brothel keeper? Check out the modus operandi used by the police or NGOs for the rescue operation and you will know the number of ‘in between’ people involved before the actual person is found.
3. From my own personal experience of establishing and managing Protective Home for the rehabilitation of victims, it has been our observation that most victims take 2-3 months to disclose the true facts of their ordeal. In the mean time they would give us fake names, fake national identities and acknowledge all the pimps and brokers as their relatives in the court and constantly reinforce that they are in it voluntarily. It is only when a home investigation is done the conflict between all that is stated and the true facts surfaces.
So, when the Apex Court directs that all Protective Homes should be checked and all adult women should be released, it indicates the myopic perspective that only minor girls are trafficked and adult women do it voluntarily. Have the wise judges contemplated on what the protocol should be followed to release the adult women so that they do not go back to the same situation especially if the rehabilitation is their primary concern!
By the way, the directions speak extensively on the attitude of the police and the need for sensitization, I would say the judiciary is no better with this myopic understanding of the ground realities.
There are several other issues such as Aadhar Card and sexual assault that comes in the directions which are much welcome; but the proposed method of handling them leaves you with the feeling that this bunch has no clue what is the ground situation. Most victims admitted in all the shelters are neither a member of any CBO or have any connection with AIDS Control Society. In fact, most of them do not want any such membership or affiliation. So, if NACO or SACS is the only way to get a Aadhar Card a good number will still not get it.
I understand one of the Judge in the bench was to retire the next day and that was perhaps the reason for such hurry in issuing these directions, but whether it will benefit the intended group only time will tell.
I can foresee a huge amount of confusion in rescue operations, increased police bashing and large contingent of criminals escaping under the grab of ‘voluntary work’.
