Prateek Tanmay
Underlining that there can’t be a one-size-fits-all approach in the application of the Immoral Trafficking Prevention Act (ITPA) to tackle commercial sexual exploitation (CSE), the Supreme Court has laid out an elaborate ‘Victim Protection Plan’, securing the rights of “voluntary” sex workers, and called upon the government to consider amending the law to exempt trafficked victims from being prosecuted for prostitution. It also sought that the new law protects the victims from “sexual abuse” by police personnel when in custody.
A bench of Justices JB Pardiwala and R Mahadevan, which exercised powers under Article 142 of the Constitution, said in its May 29 judgment that the plan which details “the manner in which preventive, protective and rehabilitative measures are to be taken to safeguard the fundamental rights of the victims of trafficking for CSE…would hold the field until the Parliament enacts a law on the subject”. The court noted that “rights of sex workers can exist without there being a right to sex work”.
The 297-page judgment sought to distinguish those trafficked for prostitution from adults who indulge in it “voluntarily” and said that “by conflating prostitution and trafficking”, the Act as it stands processes “those trafficked against their will…those who were trafficked but continue voluntarily…” and “those who have chosen sex work for themselves…through the same mechanism under Section 17, without differentiation.”
It said that “ITPA’s failure to accord rights and protections to” the latter “combined with the deep social stigma attached to sex work, results in voluntary adult sex workers being isolated, marginalised, and unable to access protections that the law extends to them”.
Writing for the bench, Justice Pardiwala said, “The larger society’s view of sex work is deeply rooted in moral judgment… This attitude is perhaps most starkly reflected in the deeply derogatory terminology that continues to be used in common parlance in Hindi and English to describe voluntary adult sex workers. The consequences of this stigma are severe and far-reaching.”
The new plan, with an emphasis on dignity and human rights, says, “Victims shall not, at any stage, be treated as criminals or subjected to measures associated with criminal liability.”
The court said that “for victims trafficked for CSE, the crime violates their right to live with dignity directly, i.e., it commodifies, impoverishes, and stigmatises. But the absence of dignity also precedes the crime, i.e., lack of access to minimum material necessities, is predominantly what makes victims vulnerable to traffickers in the first place.”
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A one-size-fits-all approach, applied to the heterogeneous group of ‘victims of trafficking for CSE’, is unlikely to serve their interests properly. In fact, it might lead to unintended consequences.
The court laid down that when sex workers are produced before a Magistrate, he or she “must conduct an initial threshold inquiry into whether the person before him is a voluntary adult sex worker who does not wish to be subjected to long term safe custody”.
“Where the victim clearly and unequivocally states that she is engaging in prostitution voluntarily and does not wish to be placed in long-term safe custody…the Magistrate shall pass an order directing a preliminary inquiry into whether her engagement in prostitution is voluntary in nature,” the court said.
Explaining why the magistrates should have the option of placing the victim under custody upon investigation, the bench said, “It is a known fact that traffickers exercise deep and pervasive control over their victims through…physical force, psychological manipulation, coercion, and sustained intimidation,” adding that the victim’s consent may be exploited in such cases.
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The court pointed out that “the legal infrastructure addressing human trafficking for the purposes of CSE in India is broad but fragmented, comprising multiple statutory instruments” and called upon the government to come out with a “separate and comprehensive legislation on trafficking, one that addresses not only trafficking for CSE but all other forms of exploitation”.
It referred to the “continued prevalence of instances of abuse and reports indicating the complicity of police officers in the crime of trafficking” and urged the government to create a specific offence where police officers “compel” or “seduce” a victim in their charge or custody to “illicit sexual intercourse”, and a rebuttable presumption that a police officer who “delays” the production of a rescued victim before a magistrate has “wrongfully confined her”.
The court also laid down elaborate procedures for police raids to rescue victims including that “no person shall be abused either verbally or physically” and “the manner in which the persons are rescued must not involve elements of unnecessary physical force or manhandling”.
The court added, “The members of the rescue team shall endeavour, to the best of their capacity, to identify whether the persons intended to be rescued are voluntary sex workers or not…It must be ensured that while photography and videography of the rescue site is done, the victims are excluded.”
