Skip to main content
Sabrang
Sabrang

Police should treat sex workers with dignity and should not abuse them: SC

The Court also directed the Press Council of India to issue appropriate guidelines for the media to take utmost care of not revealing identity of sex workers during raid or rescue operations

31 May 2022

Supreme Court
Image Courtesy:english.mathrubhumi.com

SabrangIndia had reported previously that the Supreme Court had, in a case pertaining to rights of sex workers, directed the UIDAI to provide them with Aadhaar cards without requiring address proof, and maintaining confidentiality of their data. A closer reading of the order now brings to light directions given to the police to treat sex workers with respect and compassion.

Supreme Court Bench presided by Justice L. Nageswara Rao, Justice B.R. Gavai and Justice A.S. Bopanna was hearing the matter pertaining to the right of sex workers to live with dignity and held, “This basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Bench directed the Police Officers to treat the sex workers with dignity and had mentioned in the Order dated May 19, 2022: 

"The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. 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 Bench further made directions regarding any sex worker being the victim of sexual assault saying, “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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).”

The Bench also directed the Press Council of India regarding no disclosure of identities of sex workers, “The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest/ raid/ rescue operations, whether as victims/accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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.”

The Order was based on the recommendations made by panel constituted by the Court in 2011 to examine the conditions of sex workers and to ensure that they can live with dignity.

On May 19, the Court made it crystal clear in its order that the following recommendations, to which the centre agreed, should be strictly followed by all States and Union Territories:

  • 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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

  • 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.

  • It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. 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 Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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, 12 etc.) must neither be construed as offences nor seen as evidence of 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, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

The Court also said about these recommendations, “As the legislation has not been made till date even though the recommendations were made by the Panel in the year 2016 and the said recommendations have to be implemented, we are exercising our powers conferred under Article 142 of the Constitution of India, to issue the following directions which will hold the field till a legislation is made by the Union of India.”

The Court has observed during the trial, “….basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Court held on its above observation, “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 Court stated in its Order stated that the other recommendations which have to be considered by the Union of India will be taken up after the summer break and granted six weeks time to the Union of India to file its response to the recommendations made by the panel and kept the matter for next hearing on July 27, 2022.

The recommendations made by the panel are as follows:

1)     Sex workers are entitled to equal protection of the 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. There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.

2)     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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

3)     Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.

4)     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.

5)     It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coe4rce them into any sexual activity.

6)     The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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.

7)     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 commission of an offence.

8)     The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.

9)     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 abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

10)  As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker 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 sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/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.

The Court in its Order had asked the UIDAI to maintain the confidentiality of the sex workers during the process of issuance of the Aadhar Cards and reportedly said, “There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”

The entire Order may be read here:

Related:

SC directs Aadhaar cards be issued to sex workers without insisting on the residential proof
Sex workers can’t be harassed, can’t be confined to shelter homes: SC
Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

Police should treat sex workers with dignity and should not abuse them: SC

The Court also directed the Press Council of India to issue appropriate guidelines for the media to take utmost care of not revealing identity of sex workers during raid or rescue operations

Supreme Court
Image Courtesy:english.mathrubhumi.com

SabrangIndia had reported previously that the Supreme Court had, in a case pertaining to rights of sex workers, directed the UIDAI to provide them with Aadhaar cards without requiring address proof, and maintaining confidentiality of their data. A closer reading of the order now brings to light directions given to the police to treat sex workers with respect and compassion.

Supreme Court Bench presided by Justice L. Nageswara Rao, Justice B.R. Gavai and Justice A.S. Bopanna was hearing the matter pertaining to the right of sex workers to live with dignity and held, “This basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Bench directed the Police Officers to treat the sex workers with dignity and had mentioned in the Order dated May 19, 2022: 

"The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. 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 Bench further made directions regarding any sex worker being the victim of sexual assault saying, “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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).”

The Bench also directed the Press Council of India regarding no disclosure of identities of sex workers, “The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest/ raid/ rescue operations, whether as victims/accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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.”

The Order was based on the recommendations made by panel constituted by the Court in 2011 to examine the conditions of sex workers and to ensure that they can live with dignity.

On May 19, the Court made it crystal clear in its order that the following recommendations, to which the centre agreed, should be strictly followed by all States and Union Territories:

  • 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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

  • 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.

  • It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. 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 Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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, 12 etc.) must neither be construed as offences nor seen as evidence of 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, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

The Court also said about these recommendations, “As the legislation has not been made till date even though the recommendations were made by the Panel in the year 2016 and the said recommendations have to be implemented, we are exercising our powers conferred under Article 142 of the Constitution of India, to issue the following directions which will hold the field till a legislation is made by the Union of India.”

The Court has observed during the trial, “….basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Court held on its above observation, “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 Court stated in its Order stated that the other recommendations which have to be considered by the Union of India will be taken up after the summer break and granted six weeks time to the Union of India to file its response to the recommendations made by the panel and kept the matter for next hearing on July 27, 2022.

The recommendations made by the panel are as follows:

1)     Sex workers are entitled to equal protection of the 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. There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.

2)     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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

3)     Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.

4)     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.

5)     It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coe4rce them into any sexual activity.

6)     The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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.

7)     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 commission of an offence.

8)     The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.

9)     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 abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

10)  As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker 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 sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/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.

The Court in its Order had asked the UIDAI to maintain the confidentiality of the sex workers during the process of issuance of the Aadhar Cards and reportedly said, “There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”

The entire Order may be read here:

Related:

SC directs Aadhaar cards be issued to sex workers without insisting on the residential proof
Sex workers can’t be harassed, can’t be confined to shelter homes: SC
Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

SC directs Aadhaar cards be issued to sex workers without insisting on the residential proof

Court asks UIDAI to maintain the confidentiality of sex workers’ data in the Aadhaar card issuance process

25 May 2022

sex workers Aadhar Card
Image Courtesy: indianexpress.com

On May 19, 2022 Supreme Court Division Bench comprising Justice L. Nageswasra Rao, Justice B.R. Gavai and Justice A.S. Bopanna in the Criminal Appeal No. 135 of 2010 (Budhadev Karmaskar v/s. The State of West Bengal), asked the UIDAI to maintain the confidentiality of the sex workers during the process of issuance of the Aadhaar Cards.

The Bench reportedly said, “There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench was hearing the matter pertaining to the right of sex workers to live with dignity. Explaining the reach of right to life had also included to the right to live with dignity, the court held, “This basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Bench gave six weeks time to the Union of India to file a response to the recommendations made by the Panel and hence kept the matter for next hearing on July 7, 2022.

Court’s Order

The Bench observed that, as per learned ASG Sud, the Government of India has certain reservations in respect of some of the recommendations (except those in paras 2,4,5,6,7,9) made by the Panel which was constituted by the Court. The court directed, “The State Governments/ UTs are directed to act in strict compliance of the recommendations made in paras 2,4,5,6,7,9, in addition to the implementation of the recommendations made by the panel as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act.”

The Bench further noted in the Order, “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 Bench upon getting informed by Senior Advocate Anand Grover that the Aadhaar Cards are not yet being issued to sex workers as they were unable to produce the residential proof stated, “We had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of proof of residence for the sex workers, to enable them to get an identity by the issuance of Aadhaar cards.”

Relying upon the affidavit filed by the UIDAI, the court said, “In the affidavit filed by the UIDAI, it was proposed that sex workers who are on NACO’s list and who apply for Aadhaar card but cannot submit proof of residence, can be issued Aadhaar Cards provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO or the State Health Department certifying the particulars of the applicant.”

The Darbar Mahila Samanwaya Committee, the organisation representing sex workers have earlier made certain suggestions regarding the procedures to be followed by UIDAI while issuing the Aadhaar card to the sex workers. UIDAI has examined the suggestions made and had accepted to follow the procedures proposed.

The Bench further mentioned about the procedures stating, “In view of the aforementioned, Aadhaar Cards shall be issued to sex workers on the basis of a proforma certificate which is issued by UIDAI and submitted by the Gazetted Officer at NACO or the Project Director of the State Aids Control Society, along with Aadhaar enrolment form/application. There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench also appreciated the cooperation of Mr. Zoheb Hossain, representing the UIDAI for providing relief to the sex workers who will have some identity in the society.

The suggestions made by the organisation about the procedures to UIDAI

  1. The Gazetted Officer of the State Health Department, who is authorized to submit the proforma certificate for a sex worker who applies for an Aadhaar Card but is unhable to furnish proof of residence should be pecifically designated as:- “The Project Director of the State AIDS Cotrol Society, or her/his nominee.”

  2. The name and designation of the Gazette Officers who will be authorised to submit the ‘proforma certificate’ for sex workers desirous of applying for an Aadhaar Card on behalf of NACO must be publicized on its website.

  3. NACO and the State AIDS Control Societies should publicize the procedure for sex workers who wish to apply for an Aadhaar Card but who cannot furnish proof of residence through their websites as well as through outreach under the Targetted Intervention Programmes that they implement.

  4. The sample ‘proforma certificate’ submitted by UIDAI in its Additional affidavit dated 09.02.2022 in terms of the order dated 10.01.2022 as “Annexure R-1’ on pages 5 and 6 of the said affidavit may be made readily available on the websites of UIDAI, NACO and State Aids Control Societies.

  5. There should be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identity the applicant/holder of the card as a sex worker.

  6. The procedure proposed by the UIDAI in its Additional affidavit dated 09.02.2011 may not be restricted to sex workers on the NACO list but also extended to those who are identified by CBOs after verification by the State Legal Services Authority or the State AIDS control Society. This is in line with the Hon’ble Court’s directions to State Governments to extend dry ration support and access to ration cards and voter ID cards to sex workers who are not on NACO’s list, vide orders dated 10.01.2022 and 28.02.2022.

The Panel recommendations

    1. Sex workers are entitled to equal protection of the 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. There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.

    2. 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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    3. 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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    4. 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.

    5. It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coe4rce them into any sexual activity.

    6. The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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.

    7. 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 commission of an offence.

    8. The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.

    9. 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 abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

    10. As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker 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 sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/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.

The entire Order may be read here: 

Related:

Sex workers can’t be harassed, can’t be confined to shelter homes: SC
Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

SC directs Aadhaar cards be issued to sex workers without insisting on the residential proof

Court asks UIDAI to maintain the confidentiality of sex workers’ data in the Aadhaar card issuance process

sex workers Aadhar Card
Image Courtesy: indianexpress.com

On May 19, 2022 Supreme Court Division Bench comprising Justice L. Nageswasra Rao, Justice B.R. Gavai and Justice A.S. Bopanna in the Criminal Appeal No. 135 of 2010 (Budhadev Karmaskar v/s. The State of West Bengal), asked the UIDAI to maintain the confidentiality of the sex workers during the process of issuance of the Aadhaar Cards.

The Bench reportedly said, “There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench was hearing the matter pertaining to the right of sex workers to live with dignity. Explaining the reach of right to life had also included to the right to live with dignity, the court held, “This basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Bench gave six weeks time to the Union of India to file a response to the recommendations made by the Panel and hence kept the matter for next hearing on July 7, 2022.

Court’s Order

The Bench observed that, as per learned ASG Sud, the Government of India has certain reservations in respect of some of the recommendations (except those in paras 2,4,5,6,7,9) made by the Panel which was constituted by the Court. The court directed, “The State Governments/ UTs are directed to act in strict compliance of the recommendations made in paras 2,4,5,6,7,9, in addition to the implementation of the recommendations made by the panel as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act.”

The Bench further noted in the Order, “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 Bench upon getting informed by Senior Advocate Anand Grover that the Aadhaar Cards are not yet being issued to sex workers as they were unable to produce the residential proof stated, “We had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of proof of residence for the sex workers, to enable them to get an identity by the issuance of Aadhaar cards.”

Relying upon the affidavit filed by the UIDAI, the court said, “In the affidavit filed by the UIDAI, it was proposed that sex workers who are on NACO’s list and who apply for Aadhaar card but cannot submit proof of residence, can be issued Aadhaar Cards provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO or the State Health Department certifying the particulars of the applicant.”

The Darbar Mahila Samanwaya Committee, the organisation representing sex workers have earlier made certain suggestions regarding the procedures to be followed by UIDAI while issuing the Aadhaar card to the sex workers. UIDAI has examined the suggestions made and had accepted to follow the procedures proposed.

The Bench further mentioned about the procedures stating, “In view of the aforementioned, Aadhaar Cards shall be issued to sex workers on the basis of a proforma certificate which is issued by UIDAI and submitted by the Gazetted Officer at NACO or the Project Director of the State Aids Control Society, along with Aadhaar enrolment form/application. There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench also appreciated the cooperation of Mr. Zoheb Hossain, representing the UIDAI for providing relief to the sex workers who will have some identity in the society.

The suggestions made by the organisation about the procedures to UIDAI

  1. The Gazetted Officer of the State Health Department, who is authorized to submit the proforma certificate for a sex worker who applies for an Aadhaar Card but is unhable to furnish proof of residence should be pecifically designated as:- “The Project Director of the State AIDS Cotrol Society, or her/his nominee.”

  2. The name and designation of the Gazette Officers who will be authorised to submit the ‘proforma certificate’ for sex workers desirous of applying for an Aadhaar Card on behalf of NACO must be publicized on its website.

  3. NACO and the State AIDS Control Societies should publicize the procedure for sex workers who wish to apply for an Aadhaar Card but who cannot furnish proof of residence through their websites as well as through outreach under the Targetted Intervention Programmes that they implement.

  4. The sample ‘proforma certificate’ submitted by UIDAI in its Additional affidavit dated 09.02.2022 in terms of the order dated 10.01.2022 as “Annexure R-1’ on pages 5 and 6 of the said affidavit may be made readily available on the websites of UIDAI, NACO and State Aids Control Societies.

  5. There should be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identity the applicant/holder of the card as a sex worker.

  6. The procedure proposed by the UIDAI in its Additional affidavit dated 09.02.2011 may not be restricted to sex workers on the NACO list but also extended to those who are identified by CBOs after verification by the State Legal Services Authority or the State AIDS control Society. This is in line with the Hon’ble Court’s directions to State Governments to extend dry ration support and access to ration cards and voter ID cards to sex workers who are not on NACO’s list, vide orders dated 10.01.2022 and 28.02.2022.

The Panel recommendations

    1. Sex workers are entitled to equal protection of the 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. There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.

    2. 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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    3. 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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    4. 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.

    5. It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coe4rce them into any sexual activity.

    6. The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, 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.

    7. 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 commission of an offence.

    8. The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.

    9. 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 abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

    10. As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker 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 sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/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.

The entire Order may be read here: 

Related:

Sex workers can’t be harassed, can’t be confined to shelter homes: SC
Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Sex workers can’t be harassed, can’t be confined to shelter homes: SC

Court asked the Centre and Amicus to reach a consensus and finalise proposed guidelines

19 May 2022

Supreme Court
Image Courtesy:tribuneindia.com

On May 17, 2022, a Supreme Court Division Bench comprising Justice L. Nageswasra Rao, Justice B.R. Gavai and Justice A.S. Bopanna in the Criminal Appeal No. 135 of 2010 (BudhadevKarmaskar v/s. The State of West Bengal), asked all concerned to reach a consensus in the issue of sex workers being inordinately and are forcefully sent to shelter homes, so that the Court can pass an appropriate Order in the next hearing, i.e., May 19, 2022.

The Bench was hearing the matter pertaining to the right of sex workers to live with dignity. The Court reckoned that once the sex worker is rescued from the brothel, they ought to be produced before a Magistrate, who clarifies at that stage whether the sex worker had given free consent to the activity or was coerced to give the consent. However, this process of determination of consent ought to be hastened so that those who are not in need of care and protection can be let out of these shelter homes.

Earlier on May 12, 2022, Supreme Court had asked the Centre to look into the recommendations made by the Panel appointed by the Court and Sex Workers, and come with its response on the next hearing i.e., May 17.

LiveLaw quoted Justice Rao as saying, “This is a section of society which has not only been forgotten, but no one wants to even think about them. They are not even treated as human beings. That is inhumane.”

Court room discussion on the Objections to the recommendations

Additional Solicitor GeneralJayant Sud, representing the Union Government raised some objections with respect to the recommendations made by the Panel, which was appointed by the Court, regarding the conditions conducive for sex workers who wish to continue with their work with dignity.

According to the Live Law report, the first Recommendation made by the Panel was as follows:

“Sex workers are entitled to equal protection of the 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.”

To this ASGSud raised his objection that it becomes very tricky to determine whether the consent was voluntarily given or was a coerced consent of a sex worker. There is a need for investigation in this matter. He also stated that the sex workers are not arrested, but are produced before the Magistrate, following which they are taken to shelter homes for safekeeping.

According to Live Law that published excerpts of the courtroom exchange, he said,“The objection is that for consent it is very difficult to know…I am on the fact that consent of somebody is very difficult to determine at the spur of the moment. So, what happens, is whenever somebody is caught even if the sex worker says that they are consenting party, it is not safe to rely on that. Most of the cases, at least in Delhi, if she says that she had consent then they are not arrested, but are produced before the Magistrate. After that she is sent to these homes.”

ASGSud further submitted, “The person might have become consenting over the years; she might have consented due to some pressure. When we are at a stage of trying to know what has happened, it is difficult to comment on consent.”

To which Justice Rao responded by asking, “Even if we assume you are correct, but why harass a victim? Why unnecessarily mistreat her?”

Amicus Curiae, Mr. Jayant Bhushan submitted to the Court that if there is no consent, there is no reason to arrest the sex worker. ASG Sud, to clarify the issue raised by Mr. Bhushan, submitted that since the sex workers are trafficked from across the country and new to the city where they are brought, they become vulnerable and their consent can be extracted under duress. He further indicated that according to the recommendation, if the investigation is restricted, it would not be possible for the police to probe the case adequately and find out if the consent was voluntary or not. He clarified that when the sex worker is rescued, she is sent to a shelter home, for her safety and not taken into custody.

Mr. Bhushan had met the women indulge in sex trade, informed the Bench that it becomes a huge concern when the sex workers are forcibly kept in a home where they are confined against their wishes. The question then arose about where to keep rescued sex workers.

Senior Advocate, Mr Anand Grover, suggested that the rescued sex workers can be taken to the protective homes after which their statements can be recorded immediately by the Magistrate. Thereafter they can be released from the home. He suggested that the time period of the stay at the said homes should be brief. He further made suggestion that the District Legal Services Authority should be involved in the process when there seems to be lack of legal representation.

As reported by Live Law, Justice Rao delineated the contours of the issue of placing the sex workers in a home for the interim period, as under:

“The concern is that there are some girls who have been rescued and thereafter produced before the Magistrate and they are sent to correctional homes and they are there for 2 years 3 years. We are trying to find out if in the interim they can be in a home. Whether the enquiry by the Magistrate can be done fast and the sex workers who are found to have consented can be allowed to go out.”

ASG Sud pointed out that as the parents/guardians of the sex workers have to be indicated about the legal procedures, the entire process would take time. LiveLaw quoted him as saying, “The whole process takes time. If she is a married woman, the notice goes to the husband. In most cases they give incorrect addresses for obvious reasons. Then parents don’t want to come.”

Justice Rao was appalled to note that for letting the sex worker out of the shelter/correctional homes, who is a major, notice is required to be issued to the parents/husband. “They need not be given to parents/guardians. If I am a major and say I want to go out, will you issue notice to my parents? Can't you hasten the process of enquiry? We cannot accept it that in the meanwhile they should be forced to stay in a home,”LiveLaw quoted him as saying.

Meanwhile, Mr. Bhushan remarked on the inadequacy of these shelter homes. LiveLaw quoted him as saying, “If one wants to stay in the homes there is no problem. But the issue is with the patriarchal mindset that I know best what is good for you. Most of the homes are a hellhole for them. They may have a roof and get food, but that is not sufficient. Even in jail people have a roof and get food. There cannot be a presumption that everyone indulging in sex trade is in need for care and protection.” To this Justice Rao asked, “Can you force people to stay in homes?”

Panel recommendations

Panel appointed by the Court had identified three broad aspects of the matter. Panel had made the following recommendations on one of the aspects - ‘Conditions conducive for sex workers who wish to continue working as sex workers with dignity’. These recommendations are:

  1. Sex workers are entitled to equal protection of the law.
  2. 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.
  3. There have been concerns that the police view sex workers differently. When a sex worker makes a complaint of criminal and sexual or any other offence police officers must take it seriously and act in accordance with law.
  4. Any sex worker who is the victim of sexual assault, should be provided with all facilities available to survivor of sexual assault, including immediate medical assistance.
  5. Whenever there is a raid on brothel, since voluntary sex work is not illegal and only running the brothel is illegal, the sex workers concerned should not be penalised, harassed or victimised.
  6. State Governments must conduct surveys of all ITPA Protective homes so that adult women who are detained against their will can be processed for release in a time bound manner.
  7. It is noticed that attitude of police towards sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. Authorities should be sensitised.
  8. They should treat sex workers with dignity, and should not abuse them; subject them to violence; coerce them into sexual activity.
  9. The Press Council of India should issue guidelines for the media to take utmost care not to reveal identifies of sex workers during arrest, raid and and rescue operations and not to publish or disclose photographs that would lead to identification.
  10. Newly inserted Section 354(C) IPC, which makes voyeurism a criminal offence should be strictly enforced against electronic media for telecasting photo of sex workers with their clients in the garb of capturing the rescue operation.
  11. Measures that the sex workers employ for their health and safety, like using condom should not be construed as offences or seen as evidence of commission of an offence.
  12. The Central and State Governments should include sex workers in all decision making processes for implement policy for them or formulating any change or reform in the laws relating to sex workers. They must, at least, be consulted.
  13. NALSA, SLSAs and DLSAs should educate sex workers about their rights and obligations.
  14. No child of a sex worker should be separated from a mother merely on the ground that she is in the sex trade.
  15. If a minor is living in a brothel or with a sex worker it should not be assumed that they have been trafficked.
  16. In case the sex worker states she is the mother, test can be done to check if the claim is correct. If so, the minor should not be separated.

Procedures to be followed after rescuing the sex workers from brothels

The procedures that need to be followed by police officers during and after rescuing sex workers from the brothels are incorporated in ‘The Immoral Traffic (Prevention) Act, 1956’. Here’s a quick summary:

Section 16(1) of the Act states that the Magistrate, upon receiving the information from any source, about prostitution is been carried on in a brothel, shall direct the police officer not below the rank of a sub-inspector, to enter such brothel and remove the person(s) from that place and then produce them before the Court of Magistrate.

Section 16(2) of the said Act, states that after rescuing the person by the police officer, the person shall be produced before the Magistrate.

Section 17(1) of the Act includes the provision of intermediate custody of persons rescued from the brothel. It states the situation in which for any reason, a police officer is not able to produce the rescued person before the magistrate who gave him the directions in the first place, they shall then produce the rescued person to the nearest magistrate of any class, who shall pass such orders asdeemed proper for the safe custody of the recued person(s) until they are produced before the appropriate magistrate, or, as the case may be, the magistrate issuing the order. In this it specifically mentions,“No person shall be detained in custody for a period exceeding ten days from the order given by the magistrate under this section’ or ‘restored to or placed in the custody of a person who may exercise a harmful influence over him.”

Section 17(2) states that after producing the rescued person before the appropriate magistrate, after giving the rescued person an opportunity of being heard, the Magistrate shall cause an inquiry to be made as to make sure that the information received was true, the age, character antecedents of the rescued person and the suitability of their parents, guardian or husband for taking charge of them, and also to ascertain the nature of the influence which the conditions in his home are likely to have on him if they are sent home. To make the inquiry about the circumstances and the prospects of the rescued person’s rehabilitation, the Magistrate may direct the Probation Officer appointed under the Probation of Offenders Act, 1958.

Section 17(3) states that the Magistrate may pass an Order of the safe custody of the rescued person till inquiry is pending. If the rescued person is a minor, it shall be open to the magistrate to place such child or minor in any institution established or recognised under any Children Act, for the time being in force in any State for the safe custody of children. In this Section it is clearly mentioned that “No person shall be kept in custody for the above mention purpose for a period exceeding three weeks from the date of such an order.”

Section 17(4) states that when the Magistrate, after making the inquiry, becomes satisfied the information received was correct and the rescued person needs the care and protection, he may make an order of sending the rescued person to the protective home or in such other custody which he considers suitable, for not less than a year but not exceeding the 3 years time period. The person in charge of a protective home, may be required to enter into a bond which contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the rescued person, as well as supervision by a person appointed by the court, which will be in force for a period, not exceeding three years.

Section 17(5) states that the Magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in persons.

Section 17A states that the Magistrate before e passing an order for handing over any person rescued under section 16 to the parents, guardian or husband, satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation to be made by a recognised welfare institution or organisation.

Standard Operating Procedures (SOP) on Investigating Crimes of Trafficking for Commercial Sexual Exploitation

Trafficking of women and children is one of the graver organised crimes, extending beyond boundaries and jurisdictions. Combating and preventing human trafficking requires holistic approach by all stakeholders and integrated actions on prosecution, prevention and protection. The major activities in the project are training of police officials and prosecutors, setting up Integrated Anti Human Trafficking Units, establishing networks among law enforcement agencies and civil society partners as well as developing appropriate tools including Protocols, Manuals, Standard Operating Procedures (SOP) and other training aids.

Appropriate tools, no doubt, are essential to empower the officials to carry out these tasks in the best professional manner. In this context this SOP is a tool for the law enforcement agencies to address the crimes of commercial sexual exploitation.  The SOP contains entire procedure to be followed including the production of the rescued person before the Magistrate, Medical care of the rescued person, Shelter homes, Home verification, Restoration of rescued person and providing interim relief to the rescued person.

The entire SOP may be read here:

Data related to sex workers

The stigma associated with the sex work, it is difficult to find reliable data. But according to the 2016 study by Britannica ProCon, India has approximately 30 lakh sex workers. This may seem likea conservative estimate, but the data for the estimation of number of sex workers was collected from a wide range of public sources which included - security services estimates, reporting by public health programs, and other monitoring data from global criminal justice programs.

According to the Times of India report dated July 21, 2010, the Ministry of Health and Family revealed, that as per the government records, Andhra Pradesh leads with more than one lakh registered female sex workers followed by Karnataka with 79,000. Whereas Delhi had only one known “red light area” - GB Road, there are 37,900 sex workers were registered. Jammu and Kashmir had the least, 259 registered sex workers, whereas not a single registered sex workers were found as per the government records of Dadra and Nagar Haveli as well as Daman and Diu.

Now about the rescued survivors of the sex trafficking, as per the report of Times of India dated October 8, 2021, as many as 557 victims were rescued from the clutches of traffickers in 2020 in the state of Maharashtra. Nationally, 1,466 victims were rescued in the year 2020.

Related:

Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family
Help Mumbai’s sex workers and their families tide over the CoVid-19 lockdown
Controversial Anti-Trafficking Bill tabled in Parliament

Sex workers can’t be harassed, can’t be confined to shelter homes: SC

Court asked the Centre and Amicus to reach a consensus and finalise proposed guidelines

Supreme Court
Image Courtesy:tribuneindia.com

On May 17, 2022, a Supreme Court Division Bench comprising Justice L. Nageswasra Rao, Justice B.R. Gavai and Justice A.S. Bopanna in the Criminal Appeal No. 135 of 2010 (BudhadevKarmaskar v/s. The State of West Bengal), asked all concerned to reach a consensus in the issue of sex workers being inordinately and are forcefully sent to shelter homes, so that the Court can pass an appropriate Order in the next hearing, i.e., May 19, 2022.

The Bench was hearing the matter pertaining to the right of sex workers to live with dignity. The Court reckoned that once the sex worker is rescued from the brothel, they ought to be produced before a Magistrate, who clarifies at that stage whether the sex worker had given free consent to the activity or was coerced to give the consent. However, this process of determination of consent ought to be hastened so that those who are not in need of care and protection can be let out of these shelter homes.

Earlier on May 12, 2022, Supreme Court had asked the Centre to look into the recommendations made by the Panel appointed by the Court and Sex Workers, and come with its response on the next hearing i.e., May 17.

LiveLaw quoted Justice Rao as saying, “This is a section of society which has not only been forgotten, but no one wants to even think about them. They are not even treated as human beings. That is inhumane.”

Court room discussion on the Objections to the recommendations

Additional Solicitor GeneralJayant Sud, representing the Union Government raised some objections with respect to the recommendations made by the Panel, which was appointed by the Court, regarding the conditions conducive for sex workers who wish to continue with their work with dignity.

According to the Live Law report, the first Recommendation made by the Panel was as follows:

“Sex workers are entitled to equal protection of the 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.”

To this ASGSud raised his objection that it becomes very tricky to determine whether the consent was voluntarily given or was a coerced consent of a sex worker. There is a need for investigation in this matter. He also stated that the sex workers are not arrested, but are produced before the Magistrate, following which they are taken to shelter homes for safekeeping.

According to Live Law that published excerpts of the courtroom exchange, he said,“The objection is that for consent it is very difficult to know…I am on the fact that consent of somebody is very difficult to determine at the spur of the moment. So, what happens, is whenever somebody is caught even if the sex worker says that they are consenting party, it is not safe to rely on that. Most of the cases, at least in Delhi, if she says that she had consent then they are not arrested, but are produced before the Magistrate. After that she is sent to these homes.”

ASGSud further submitted, “The person might have become consenting over the years; she might have consented due to some pressure. When we are at a stage of trying to know what has happened, it is difficult to comment on consent.”

To which Justice Rao responded by asking, “Even if we assume you are correct, but why harass a victim? Why unnecessarily mistreat her?”

Amicus Curiae, Mr. Jayant Bhushan submitted to the Court that if there is no consent, there is no reason to arrest the sex worker. ASG Sud, to clarify the issue raised by Mr. Bhushan, submitted that since the sex workers are trafficked from across the country and new to the city where they are brought, they become vulnerable and their consent can be extracted under duress. He further indicated that according to the recommendation, if the investigation is restricted, it would not be possible for the police to probe the case adequately and find out if the consent was voluntary or not. He clarified that when the sex worker is rescued, she is sent to a shelter home, for her safety and not taken into custody.

Mr. Bhushan had met the women indulge in sex trade, informed the Bench that it becomes a huge concern when the sex workers are forcibly kept in a home where they are confined against their wishes. The question then arose about where to keep rescued sex workers.

Senior Advocate, Mr Anand Grover, suggested that the rescued sex workers can be taken to the protective homes after which their statements can be recorded immediately by the Magistrate. Thereafter they can be released from the home. He suggested that the time period of the stay at the said homes should be brief. He further made suggestion that the District Legal Services Authority should be involved in the process when there seems to be lack of legal representation.

As reported by Live Law, Justice Rao delineated the contours of the issue of placing the sex workers in a home for the interim period, as under:

“The concern is that there are some girls who have been rescued and thereafter produced before the Magistrate and they are sent to correctional homes and they are there for 2 years 3 years. We are trying to find out if in the interim they can be in a home. Whether the enquiry by the Magistrate can be done fast and the sex workers who are found to have consented can be allowed to go out.”

ASG Sud pointed out that as the parents/guardians of the sex workers have to be indicated about the legal procedures, the entire process would take time. LiveLaw quoted him as saying, “The whole process takes time. If she is a married woman, the notice goes to the husband. In most cases they give incorrect addresses for obvious reasons. Then parents don’t want to come.”

Justice Rao was appalled to note that for letting the sex worker out of the shelter/correctional homes, who is a major, notice is required to be issued to the parents/husband. “They need not be given to parents/guardians. If I am a major and say I want to go out, will you issue notice to my parents? Can't you hasten the process of enquiry? We cannot accept it that in the meanwhile they should be forced to stay in a home,”LiveLaw quoted him as saying.

Meanwhile, Mr. Bhushan remarked on the inadequacy of these shelter homes. LiveLaw quoted him as saying, “If one wants to stay in the homes there is no problem. But the issue is with the patriarchal mindset that I know best what is good for you. Most of the homes are a hellhole for them. They may have a roof and get food, but that is not sufficient. Even in jail people have a roof and get food. There cannot be a presumption that everyone indulging in sex trade is in need for care and protection.” To this Justice Rao asked, “Can you force people to stay in homes?”

Panel recommendations

Panel appointed by the Court had identified three broad aspects of the matter. Panel had made the following recommendations on one of the aspects - ‘Conditions conducive for sex workers who wish to continue working as sex workers with dignity’. These recommendations are:

  1. Sex workers are entitled to equal protection of the law.
  2. 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.
  3. There have been concerns that the police view sex workers differently. When a sex worker makes a complaint of criminal and sexual or any other offence police officers must take it seriously and act in accordance with law.
  4. Any sex worker who is the victim of sexual assault, should be provided with all facilities available to survivor of sexual assault, including immediate medical assistance.
  5. Whenever there is a raid on brothel, since voluntary sex work is not illegal and only running the brothel is illegal, the sex workers concerned should not be penalised, harassed or victimised.
  6. State Governments must conduct surveys of all ITPA Protective homes so that adult women who are detained against their will can be processed for release in a time bound manner.
  7. It is noticed that attitude of police towards sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. Authorities should be sensitised.
  8. They should treat sex workers with dignity, and should not abuse them; subject them to violence; coerce them into sexual activity.
  9. The Press Council of India should issue guidelines for the media to take utmost care not to reveal identifies of sex workers during arrest, raid and and rescue operations and not to publish or disclose photographs that would lead to identification.
  10. Newly inserted Section 354(C) IPC, which makes voyeurism a criminal offence should be strictly enforced against electronic media for telecasting photo of sex workers with their clients in the garb of capturing the rescue operation.
  11. Measures that the sex workers employ for their health and safety, like using condom should not be construed as offences or seen as evidence of commission of an offence.
  12. The Central and State Governments should include sex workers in all decision making processes for implement policy for them or formulating any change or reform in the laws relating to sex workers. They must, at least, be consulted.
  13. NALSA, SLSAs and DLSAs should educate sex workers about their rights and obligations.
  14. No child of a sex worker should be separated from a mother merely on the ground that she is in the sex trade.
  15. If a minor is living in a brothel or with a sex worker it should not be assumed that they have been trafficked.
  16. In case the sex worker states she is the mother, test can be done to check if the claim is correct. If so, the minor should not be separated.

Procedures to be followed after rescuing the sex workers from brothels

The procedures that need to be followed by police officers during and after rescuing sex workers from the brothels are incorporated in ‘The Immoral Traffic (Prevention) Act, 1956’. Here’s a quick summary:

Section 16(1) of the Act states that the Magistrate, upon receiving the information from any source, about prostitution is been carried on in a brothel, shall direct the police officer not below the rank of a sub-inspector, to enter such brothel and remove the person(s) from that place and then produce them before the Court of Magistrate.

Section 16(2) of the said Act, states that after rescuing the person by the police officer, the person shall be produced before the Magistrate.

Section 17(1) of the Act includes the provision of intermediate custody of persons rescued from the brothel. It states the situation in which for any reason, a police officer is not able to produce the rescued person before the magistrate who gave him the directions in the first place, they shall then produce the rescued person to the nearest magistrate of any class, who shall pass such orders asdeemed proper for the safe custody of the recued person(s) until they are produced before the appropriate magistrate, or, as the case may be, the magistrate issuing the order. In this it specifically mentions,“No person shall be detained in custody for a period exceeding ten days from the order given by the magistrate under this section’ or ‘restored to or placed in the custody of a person who may exercise a harmful influence over him.”

Section 17(2) states that after producing the rescued person before the appropriate magistrate, after giving the rescued person an opportunity of being heard, the Magistrate shall cause an inquiry to be made as to make sure that the information received was true, the age, character antecedents of the rescued person and the suitability of their parents, guardian or husband for taking charge of them, and also to ascertain the nature of the influence which the conditions in his home are likely to have on him if they are sent home. To make the inquiry about the circumstances and the prospects of the rescued person’s rehabilitation, the Magistrate may direct the Probation Officer appointed under the Probation of Offenders Act, 1958.

Section 17(3) states that the Magistrate may pass an Order of the safe custody of the rescued person till inquiry is pending. If the rescued person is a minor, it shall be open to the magistrate to place such child or minor in any institution established or recognised under any Children Act, for the time being in force in any State for the safe custody of children. In this Section it is clearly mentioned that “No person shall be kept in custody for the above mention purpose for a period exceeding three weeks from the date of such an order.”

Section 17(4) states that when the Magistrate, after making the inquiry, becomes satisfied the information received was correct and the rescued person needs the care and protection, he may make an order of sending the rescued person to the protective home or in such other custody which he considers suitable, for not less than a year but not exceeding the 3 years time period. The person in charge of a protective home, may be required to enter into a bond which contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the rescued person, as well as supervision by a person appointed by the court, which will be in force for a period, not exceeding three years.

Section 17(5) states that the Magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in persons.

Section 17A states that the Magistrate before e passing an order for handing over any person rescued under section 16 to the parents, guardian or husband, satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation to be made by a recognised welfare institution or organisation.

Standard Operating Procedures (SOP) on Investigating Crimes of Trafficking for Commercial Sexual Exploitation

Trafficking of women and children is one of the graver organised crimes, extending beyond boundaries and jurisdictions. Combating and preventing human trafficking requires holistic approach by all stakeholders and integrated actions on prosecution, prevention and protection. The major activities in the project are training of police officials and prosecutors, setting up Integrated Anti Human Trafficking Units, establishing networks among law enforcement agencies and civil society partners as well as developing appropriate tools including Protocols, Manuals, Standard Operating Procedures (SOP) and other training aids.

Appropriate tools, no doubt, are essential to empower the officials to carry out these tasks in the best professional manner. In this context this SOP is a tool for the law enforcement agencies to address the crimes of commercial sexual exploitation.  The SOP contains entire procedure to be followed including the production of the rescued person before the Magistrate, Medical care of the rescued person, Shelter homes, Home verification, Restoration of rescued person and providing interim relief to the rescued person.

The entire SOP may be read here:

Data related to sex workers

The stigma associated with the sex work, it is difficult to find reliable data. But according to the 2016 study by Britannica ProCon, India has approximately 30 lakh sex workers. This may seem likea conservative estimate, but the data for the estimation of number of sex workers was collected from a wide range of public sources which included - security services estimates, reporting by public health programs, and other monitoring data from global criminal justice programs.

According to the Times of India report dated July 21, 2010, the Ministry of Health and Family revealed, that as per the government records, Andhra Pradesh leads with more than one lakh registered female sex workers followed by Karnataka with 79,000. Whereas Delhi had only one known “red light area” - GB Road, there are 37,900 sex workers were registered. Jammu and Kashmir had the least, 259 registered sex workers, whereas not a single registered sex workers were found as per the government records of Dadra and Nagar Haveli as well as Daman and Diu.

Now about the rescued survivors of the sex trafficking, as per the report of Times of India dated October 8, 2021, as many as 557 victims were rescued from the clutches of traffickers in 2020 in the state of Maharashtra. Nationally, 1,466 victims were rescued in the year 2020.

Related:

Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family
Help Mumbai’s sex workers and their families tide over the CoVid-19 lockdown
Controversial Anti-Trafficking Bill tabled in Parliament

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

It also asked how the State, through National AIDS Control Organisation, will identify sex workers and provide ration

29 May 2021

Image Courtesy:time8.in

The Gauhati High Court has admitted a public interest litigation concerning the present condition of sex workers in Assam who, according to the petitioner in most cases, are on the verge of starvation, considering the strange and difficult times of the present Covid-19 pandemic.

Chief Justice Sudhanshu Dhulia and Justice MR Pathak directed the District Legal Services Authority, Cachar to provide immediate ration to sex workers and their family members identified by Deputy Commissioner of the District.

It also directed the State Government to inform the Court about how the National AIDS Control Organisation through Assam State AIDS Control Society will give relief to sex workers in Assam and how will they be identified for the same.

“We hereby pass an interim mandamus directing the Deputy Commissioner, Cachar as well as the Secretary, District Legal Services Authority, Cachar to immediately provide ration to these families”, read the order.

The Bench added, “We have been informed that Deputy Commissioner, Cachar has already identified these sex workers and their families, since a project is being run under the Deputy Commissioner, by the National AIDS Control Organization. Since it is an urgent situation, let the above ration be provided to them today itself.”

Last year in Budhadev Karmaskar vs State of West Bengal, the Supreme Court was hearing a similar matter about sex workers and observed, “Covid-19 has caused severe disruption in the normal life. Sex workers have been badly affected due to loss of earnings during the pandemic. Various schemes floated by the Union Government and the State Governments to help the destitute have not reached the sex workers. The reason for the sex workers not having access to the schemes is lack of proof of identity.”

It held that it is incumbent on the Central and the State Governments/Union Territories to rescue the sex workers who are in dire straits and that they are entitled to be provided with dry rations. Thus, the top court had directed the State Governments and the Union Territories to provide dry rations to the sex workers who are identified by National Aids Control Organisation (NACO) without insisting on proof of identity.

The matter before the Gauhati High Court has been posted for hearing on June 1.

The order may be read here:

Related:

Courts upholds dignity of sex-workers in two important orders
Indian bill to ‘protect’ trafficking victims will make sex workers less safe

Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

It also asked how the State, through National AIDS Control Organisation, will identify sex workers and provide ration

Image Courtesy:time8.in

The Gauhati High Court has admitted a public interest litigation concerning the present condition of sex workers in Assam who, according to the petitioner in most cases, are on the verge of starvation, considering the strange and difficult times of the present Covid-19 pandemic.

Chief Justice Sudhanshu Dhulia and Justice MR Pathak directed the District Legal Services Authority, Cachar to provide immediate ration to sex workers and their family members identified by Deputy Commissioner of the District.

It also directed the State Government to inform the Court about how the National AIDS Control Organisation through Assam State AIDS Control Society will give relief to sex workers in Assam and how will they be identified for the same.

“We hereby pass an interim mandamus directing the Deputy Commissioner, Cachar as well as the Secretary, District Legal Services Authority, Cachar to immediately provide ration to these families”, read the order.

The Bench added, “We have been informed that Deputy Commissioner, Cachar has already identified these sex workers and their families, since a project is being run under the Deputy Commissioner, by the National AIDS Control Organization. Since it is an urgent situation, let the above ration be provided to them today itself.”

Last year in Budhadev Karmaskar vs State of West Bengal, the Supreme Court was hearing a similar matter about sex workers and observed, “Covid-19 has caused severe disruption in the normal life. Sex workers have been badly affected due to loss of earnings during the pandemic. Various schemes floated by the Union Government and the State Governments to help the destitute have not reached the sex workers. The reason for the sex workers not having access to the schemes is lack of proof of identity.”

It held that it is incumbent on the Central and the State Governments/Union Territories to rescue the sex workers who are in dire straits and that they are entitled to be provided with dry rations. Thus, the top court had directed the State Governments and the Union Territories to provide dry rations to the sex workers who are identified by National Aids Control Organisation (NACO) without insisting on proof of identity.

The matter before the Gauhati High Court has been posted for hearing on June 1.

The order may be read here:

Related:

Courts upholds dignity of sex-workers in two important orders
Indian bill to ‘protect’ trafficking victims will make sex workers less safe

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Courts upholds dignity of sex-workers in two important orders

First the SC directed the government to provide Monetary assistance and rations to them without demanding IDs, and now Bombay HC set three of them free recognising prostitution is not an offence

26 Sep 2020

SC

Indian courts scored twice in one week with two judgments that accorded dignity to sex-workers. First, on Monday September 21, the Supreme Court directed the Centre and state governments to provide monetary assistance and rations to commercial sex-workers without insisting on identity proof.

Justices L Nageswar Rao and Hemant Gupta were hearing a plea by Durbar Mahila Samanway Committee (DMSC), a collective of sex-workers. In the wake of the Covid-19 pandemic and the subsequent nationwide lockdown sex work had come to a grinding halt, taking away their only means of livelihood.

DMSC pointed out that given how sex workers are not recognised as labourers and are rarely members of any labour union, they do not have Labour Cards, thus leaving them no means of accessing any social security benefits like Direct Bank Transfers (DBT). Moreover, they get rations under the Public Distribution System (PDS) or have access to public healthcare facilities.

The order may be read here: 

In fact, SabrangIndia’s partner organisation Citizens for Justice and Peace had provided relief supplies to families of close to 200 sex workers in Kamathipura during the lockdown in association with Kranti, an organisation that works with children of sex workers.

In the second instance of courts treating sex workers with dignity, the Bombay High Court set three sex workers free from a women’s hostel observing that prostitution was not an offense in law. Moreover, an adult woman has the right to choose her vocation and cannot be detained without her consent.

The women aged 20, 22 and 23 were ‘rescued’ by the social service branch of the Mumbai Police from Malad in September 2019, after laying trap as a decoy customer, reported Hindustan Times. A magistrate refused to let them be sent to their mothers as they hailed from a community that allegedly has an age-old tradition of prostitution. The order was upheld by the Dindoshi Sessions Court. The women were subsequently taken to a women’s hostel in Uttar Pradesh, where they had been detailed until the HC set them free.   

Striking down the order, the HC held “It is important to note that the petitioners / victims are major and, therefore, have a right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation, as enshrined the Constitution of India,” reported HT.

 

Related:

HIV Rates Are Down. There’s Little Else Going For India’s Sex Workers

Indian bill to ‘protect’ trafficking victims will make sex workers less safe

Courts upholds dignity of sex-workers in two important orders

First the SC directed the government to provide Monetary assistance and rations to them without demanding IDs, and now Bombay HC set three of them free recognising prostitution is not an offence

SC

Indian courts scored twice in one week with two judgments that accorded dignity to sex-workers. First, on Monday September 21, the Supreme Court directed the Centre and state governments to provide monetary assistance and rations to commercial sex-workers without insisting on identity proof.

Justices L Nageswar Rao and Hemant Gupta were hearing a plea by Durbar Mahila Samanway Committee (DMSC), a collective of sex-workers. In the wake of the Covid-19 pandemic and the subsequent nationwide lockdown sex work had come to a grinding halt, taking away their only means of livelihood.

DMSC pointed out that given how sex workers are not recognised as labourers and are rarely members of any labour union, they do not have Labour Cards, thus leaving them no means of accessing any social security benefits like Direct Bank Transfers (DBT). Moreover, they get rations under the Public Distribution System (PDS) or have access to public healthcare facilities.

The order may be read here: 

In fact, SabrangIndia’s partner organisation Citizens for Justice and Peace had provided relief supplies to families of close to 200 sex workers in Kamathipura during the lockdown in association with Kranti, an organisation that works with children of sex workers.

In the second instance of courts treating sex workers with dignity, the Bombay High Court set three sex workers free from a women’s hostel observing that prostitution was not an offense in law. Moreover, an adult woman has the right to choose her vocation and cannot be detained without her consent.

The women aged 20, 22 and 23 were ‘rescued’ by the social service branch of the Mumbai Police from Malad in September 2019, after laying trap as a decoy customer, reported Hindustan Times. A magistrate refused to let them be sent to their mothers as they hailed from a community that allegedly has an age-old tradition of prostitution. The order was upheld by the Dindoshi Sessions Court. The women were subsequently taken to a women’s hostel in Uttar Pradesh, where they had been detailed until the HC set them free.   

Striking down the order, the HC held “It is important to note that the petitioners / victims are major and, therefore, have a right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation, as enshrined the Constitution of India,” reported HT.

 

Related:

HIV Rates Are Down. There’s Little Else Going For India’s Sex Workers

Indian bill to ‘protect’ trafficking victims will make sex workers less safe

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

HIV Rates Are Down. There’s Little Else Going For India’s Sex Workers

09 Aug 2019

New Delhi: The proportion of Indian sex workers with HIV/AIDS declined over four years to 2017, more use condoms than ever before and funding to control the disease rose 21% over the period, according to an IndiaSpend analysis of national health data.




But there appears to be little change in violence, stigma and discrimination against sex workers, how Indian states treat them varies, and funding and drugs are not always available when and where they should be.

Over 91% of Indian sex workers used condoms in 2018, and no more than 1.6% of female sex workers had HIV (human immunodeficieny virus) and AIDS (acquired immunodeficiency syndrome) in 2017, down from 2.75% in 2013, mirroring a decline reflected among the general population, according to the latest available data.



Over four years to 2017,  the “HIV prevalence rate”, the percentage of people tested and found infected, among men who have sex with men also dropped from 4.4% to 2.7%, said a 2018 report from UNAIDS, a United Nations organisation, and India’s National AIDS Control Organisation (NACO).



As of 2017, India had a total of 2.17 million people living with HIV. New infections dropped 27% over seven years to 2017--from 120,000 to 88,000.

“This indicates that HIV prevalence is reducing among sex workers,” said a NACO representative, speaking on condition of anonymity.

Female and transgender sex workers and men who have sex with men are considered high-risk groups in determining HIV/AIDS prevalence.

“Globally, sex workers are 13 times more at risk of contracting HIV, when compared to the general population, because they are economically vulnerable, unable to negotiate consistent condom use, and experience violence, criminalisation and marginalisation,” said a 2018 study by UNAIDS.

The new data do not mean that sex workers now lead better lives.

Adorned with red lipstick and dressed in a long skirt with shiny earrings, Ramkali Kumar, 26, a transgender sex worker from the western Uttar Pradesh city of Noida, spoke about violent clients.  

“Many times when I agreed to go with a client, I found out that there were multiple men waiting to be pleasured,” she said. She was ostracised and abandoned by her family nine years ago. Her only family now is Basera, which provides shelter to sex workers of all genders.

Police brutality, abusive and violent middlemen and clients are common, said Shamnu Rao, programme officer with the India-HIV Alliance, an advocacy. “Violence and stigma against sex workers depends upon the involvement of gatekeepers in the sex work,” said Rao. Gatekeepers include brothel owners, and pimps or middlemen.

“When sex workers are independently approaching clients, the chances of police brutality increases whereas the involvement of middlemen entails another kind of structural violence,” said Rao.

While violence and abuse continue, and the HIV/AIDS infection rate is falling, many Indian states are worse off than others.

HIV prevalence and vulnerability

About 82% of female sex workers are vulnerable to “stigma, financial insecurity, and lack of social support” in Maharashtra, compared to 35% in Karnataka, according to the 2018 study.  This vulnerability is linked to living conditions, healthcare and security of sex workers rather than HIV estimates among sex workers.

Maharashtra, Karnataka, Tamil Nadu, Telangana and Andhra Pradesh have a high prevalence of HIV among sex workers. Maharashtra has 7% HIV prevalence rate, Karnataka has 6%, and Tamil Nadu has 1%. Around 31% sex workers living in these states remain financially insecure, making them vulnerable to disease.

Half of Maharashtra’s sex workers depend only on sex work for survival, and do not have insurance. In Tamil Nadu, two-fifths and in Karnataka a fifth of sex workers face similar issues. This makes sex workers vulnerable to clients who insist on unprotected sex.



Violence and discrimination boost disease

Violence, abuse and discrimination against sex workers increased the risk of disease among sex workers, as IndiaSpend reported in August 2016.

NACO does not have a programme to eradicate the stigma against sex workers. “The stigma that sex workers face is usually covered under the programme for people living with HIV/AIDS,” said the NACO representative quoted previously.

Men who have sex with men, and transgenders are key populations in checking the spread of HIV, as we said, and are more vulnerable because their dress and body language makes them more visible.

Various state governments have labeled sex workers as “oppressed”, instead of seeing them as citizens in charge of their own lives. “In Karnataka, the government often labels sex workers as dananitha mahila or oppressed woman,” said Rajesh Umadevei, 30, who works with the National Network of Sex Workers, an advocacy.

The stigma against sex workers makes social security services inaccessible. “Sex workers are discriminated against by their landlords who do not give them bills or sufficient address proof needed to get Aadhaar cards made,” said Amit Kumar, a coordinator at the All India Network of Sex Workers.

Despite the discrimination and job risks that sex workers face, risky sexual behaviour is reducing, as the data indicate.

Free condoms are not the solution

How is risky sexual behaviour reducing? 

The answer may lie in a government programme that appears to be working. Under a NACO programme, condoms are supplied free to organisations that work with high-risk groups.

“Peer to peer sex-education, and awareness about sexual health has increased among sex workers,” said Rao of the India-HIV Alliance. Many sex workers were now aware of safe sex and were getting themselves tested every six months, said the NACO representative.

However, Ramkali, the transgender sex worker, said the risks continue because clients are willing to pay more for unprotected sex.

“The data show one side, (but) there is an immediate need for targeted interventions to focus on new hotspots and locate the reason of new HIV infections,” said Rao. Older sex workers do not insist on condoms as much as their younger counterparts because they get fewer clients, she said.

In 2008, NACO started its Condom Promotion Programme in 15 states. Such programmes focus on markeing condoms rather than creating awareness about safe sex, said experts 

“During my research, I observed that NGOs and community-based organisations had targets to meet,” said a Mumbai-based researcher on condition on anonymity because of the sensitivity of the subject. “In an effort to encourage condom use among sex workers, the emphasis was on selling and corporate marketing, rather than making them conscious about their sexual health.” 

However, Meena Seshu, founder of Sangram, an advocacy, said that selling condoms was not more important than making sex workers aware about sexual health. She described condoms as “life-saving equipment for sex workers”.

Needed: a plan 

The budget for the National AIDS and sexualy transmitted disease (STD) control programmes rose 21% over four years to 2017. But this does not mean the money comes when it is needed and is used as it should be.

“Since last year the funding for the HIV/AIDS programme came late,” said Seshu of Sangram. “We carried out the programme with our own money.” 

Antiretroviral therapy (ART) drugs, used to treat HIV, are often difficult to find, even in high HIV prevalence states.

However, NACO has disagreed with experts about the shortage of ART drugs. “We do not have information about (a) shortage of ART drugs,” said the NACO representative. “Even if it is happening, it could be at the distribution level.” 

Another problem is that sex workers do not know what they should about HIV/AIDS. Less than a quarter of sex workers in Karnataka, for instance, knew how to prevent the virus being transmitted from them to their children, according to a 2018 report.

“A comprehensive approach would be to address if sex workers have stigma-free access to sexual and reproductive health services,” said Rao of India-HIV alliance.

Community action

NACO has shifted the responsibility of tackling stigma and violence against sex workers to their communities, which have indeed sensitised medical staff and started programmes on sexual and reproductive health.

Community workers have helped sex workers talk about their problems and linked them to police and government resources. For instance, the National Legal Services Authority provides para-legal training to selected sex workers.

“Paralegal trainers help sex workers set up social-security service camps,” said Kumar of the All India Network of Sex Workers. “These include camps to provide access to a ration card, bus pass, Aadhaar card, regular testing for STDs and sensitise healthcare workers in the field.” 

Sex workers are now trying to sensitise medical practitioners, but they find it difficult to make headway. “Doctors often ask us how many clients we take,” said Kusum, 38, who uses only her first name, President of the All India Network of Sex Workers, a collective. “They are not sensitive towards us.”

There has been some improvement in the sexual-reproductive health plan, said Kusum, explaining how many female sex workers carry a kit with condoms and a pregnancy test kit. Her colleagues counsel workers on sexually transmitted infections, reproductive health and safe abortion periods.

This story was first published here on Healthcheck.

(Chachra is a PhD Student at Delhi’s Jawaharlal Nehru University.)

Courtesy: India Spend

HIV Rates Are Down. There’s Little Else Going For India’s Sex Workers

New Delhi: The proportion of Indian sex workers with HIV/AIDS declined over four years to 2017, more use condoms than ever before and funding to control the disease rose 21% over the period, according to an IndiaSpend analysis of national health data.




But there appears to be little change in violence, stigma and discrimination against sex workers, how Indian states treat them varies, and funding and drugs are not always available when and where they should be.

Over 91% of Indian sex workers used condoms in 2018, and no more than 1.6% of female sex workers had HIV (human immunodeficieny virus) and AIDS (acquired immunodeficiency syndrome) in 2017, down from 2.75% in 2013, mirroring a decline reflected among the general population, according to the latest available data.



Over four years to 2017,  the “HIV prevalence rate”, the percentage of people tested and found infected, among men who have sex with men also dropped from 4.4% to 2.7%, said a 2018 report from UNAIDS, a United Nations organisation, and India’s National AIDS Control Organisation (NACO).



As of 2017, India had a total of 2.17 million people living with HIV. New infections dropped 27% over seven years to 2017--from 120,000 to 88,000.

“This indicates that HIV prevalence is reducing among sex workers,” said a NACO representative, speaking on condition of anonymity.

Female and transgender sex workers and men who have sex with men are considered high-risk groups in determining HIV/AIDS prevalence.

“Globally, sex workers are 13 times more at risk of contracting HIV, when compared to the general population, because they are economically vulnerable, unable to negotiate consistent condom use, and experience violence, criminalisation and marginalisation,” said a 2018 study by UNAIDS.

The new data do not mean that sex workers now lead better lives.

Adorned with red lipstick and dressed in a long skirt with shiny earrings, Ramkali Kumar, 26, a transgender sex worker from the western Uttar Pradesh city of Noida, spoke about violent clients.  

“Many times when I agreed to go with a client, I found out that there were multiple men waiting to be pleasured,” she said. She was ostracised and abandoned by her family nine years ago. Her only family now is Basera, which provides shelter to sex workers of all genders.

Police brutality, abusive and violent middlemen and clients are common, said Shamnu Rao, programme officer with the India-HIV Alliance, an advocacy. “Violence and stigma against sex workers depends upon the involvement of gatekeepers in the sex work,” said Rao. Gatekeepers include brothel owners, and pimps or middlemen.

“When sex workers are independently approaching clients, the chances of police brutality increases whereas the involvement of middlemen entails another kind of structural violence,” said Rao.

While violence and abuse continue, and the HIV/AIDS infection rate is falling, many Indian states are worse off than others.

HIV prevalence and vulnerability

About 82% of female sex workers are vulnerable to “stigma, financial insecurity, and lack of social support” in Maharashtra, compared to 35% in Karnataka, according to the 2018 study.  This vulnerability is linked to living conditions, healthcare and security of sex workers rather than HIV estimates among sex workers.

Maharashtra, Karnataka, Tamil Nadu, Telangana and Andhra Pradesh have a high prevalence of HIV among sex workers. Maharashtra has 7% HIV prevalence rate, Karnataka has 6%, and Tamil Nadu has 1%. Around 31% sex workers living in these states remain financially insecure, making them vulnerable to disease.

Half of Maharashtra’s sex workers depend only on sex work for survival, and do not have insurance. In Tamil Nadu, two-fifths and in Karnataka a fifth of sex workers face similar issues. This makes sex workers vulnerable to clients who insist on unprotected sex.



Violence and discrimination boost disease

Violence, abuse and discrimination against sex workers increased the risk of disease among sex workers, as IndiaSpend reported in August 2016.

NACO does not have a programme to eradicate the stigma against sex workers. “The stigma that sex workers face is usually covered under the programme for people living with HIV/AIDS,” said the NACO representative quoted previously.

Men who have sex with men, and transgenders are key populations in checking the spread of HIV, as we said, and are more vulnerable because their dress and body language makes them more visible.

Various state governments have labeled sex workers as “oppressed”, instead of seeing them as citizens in charge of their own lives. “In Karnataka, the government often labels sex workers as dananitha mahila or oppressed woman,” said Rajesh Umadevei, 30, who works with the National Network of Sex Workers, an advocacy.

The stigma against sex workers makes social security services inaccessible. “Sex workers are discriminated against by their landlords who do not give them bills or sufficient address proof needed to get Aadhaar cards made,” said Amit Kumar, a coordinator at the All India Network of Sex Workers.

Despite the discrimination and job risks that sex workers face, risky sexual behaviour is reducing, as the data indicate.

Free condoms are not the solution

How is risky sexual behaviour reducing? 

The answer may lie in a government programme that appears to be working. Under a NACO programme, condoms are supplied free to organisations that work with high-risk groups.

“Peer to peer sex-education, and awareness about sexual health has increased among sex workers,” said Rao of the India-HIV Alliance. Many sex workers were now aware of safe sex and were getting themselves tested every six months, said the NACO representative.

However, Ramkali, the transgender sex worker, said the risks continue because clients are willing to pay more for unprotected sex.

“The data show one side, (but) there is an immediate need for targeted interventions to focus on new hotspots and locate the reason of new HIV infections,” said Rao. Older sex workers do not insist on condoms as much as their younger counterparts because they get fewer clients, she said.

In 2008, NACO started its Condom Promotion Programme in 15 states. Such programmes focus on markeing condoms rather than creating awareness about safe sex, said experts 

“During my research, I observed that NGOs and community-based organisations had targets to meet,” said a Mumbai-based researcher on condition on anonymity because of the sensitivity of the subject. “In an effort to encourage condom use among sex workers, the emphasis was on selling and corporate marketing, rather than making them conscious about their sexual health.” 

However, Meena Seshu, founder of Sangram, an advocacy, said that selling condoms was not more important than making sex workers aware about sexual health. She described condoms as “life-saving equipment for sex workers”.

Needed: a plan 

The budget for the National AIDS and sexualy transmitted disease (STD) control programmes rose 21% over four years to 2017. But this does not mean the money comes when it is needed and is used as it should be.

“Since last year the funding for the HIV/AIDS programme came late,” said Seshu of Sangram. “We carried out the programme with our own money.” 

Antiretroviral therapy (ART) drugs, used to treat HIV, are often difficult to find, even in high HIV prevalence states.

However, NACO has disagreed with experts about the shortage of ART drugs. “We do not have information about (a) shortage of ART drugs,” said the NACO representative. “Even if it is happening, it could be at the distribution level.” 

Another problem is that sex workers do not know what they should about HIV/AIDS. Less than a quarter of sex workers in Karnataka, for instance, knew how to prevent the virus being transmitted from them to their children, according to a 2018 report.

“A comprehensive approach would be to address if sex workers have stigma-free access to sexual and reproductive health services,” said Rao of India-HIV alliance.

Community action

NACO has shifted the responsibility of tackling stigma and violence against sex workers to their communities, which have indeed sensitised medical staff and started programmes on sexual and reproductive health.

Community workers have helped sex workers talk about their problems and linked them to police and government resources. For instance, the National Legal Services Authority provides para-legal training to selected sex workers.

“Paralegal trainers help sex workers set up social-security service camps,” said Kumar of the All India Network of Sex Workers. “These include camps to provide access to a ration card, bus pass, Aadhaar card, regular testing for STDs and sensitise healthcare workers in the field.” 

Sex workers are now trying to sensitise medical practitioners, but they find it difficult to make headway. “Doctors often ask us how many clients we take,” said Kusum, 38, who uses only her first name, President of the All India Network of Sex Workers, a collective. “They are not sensitive towards us.”

There has been some improvement in the sexual-reproductive health plan, said Kusum, explaining how many female sex workers carry a kit with condoms and a pregnancy test kit. Her colleagues counsel workers on sexually transmitted infections, reproductive health and safe abortion periods.

This story was first published here on Healthcheck.

(Chachra is a PhD Student at Delhi’s Jawaharlal Nehru University.)

Courtesy: India Spend

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Indian bill to ‘protect’ trafficking victims will make sex workers less safe

19 Dec 2018
Hoping to protect women from sexual exploitation, Indian lawmakers are pushing a bill that amends the criminal code to harden legal and financial penalties for sex trafficking.



The “Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill,” which passed the lower house of India’s parliament in July 2018 and may become law in 2019, seeks to make combat this lucrative, illicit trade.

Not everyone thinks harsh deterrence will work.

Days after it passed in the lower house of India’s Parliament in July, two United Nations experts said the bill leans too heavily on the criminal justice system. Without more of a “human-rights based and victim-centred approach,” the UN special rapporteurs on human trafficking and modern slavery warned, India “risks further harming already vulnerable individuals.”
 

India’s sex trade

According to the Indian government, 4,980 victims of sex trafficking were rescued in the country in 2016.

Sex workers in India oppose the bill that’s ostensibly meant to protect them, saying it inaccurately conflates human trafficking with consensual sex work.

In major Indian cities like Kolkata, Hyderabad and Sangli, sex workers are well organized and politically engaged. Yet no sex worker groups were consulted during the drafting of the legislation.

Community leaders argue that the anti-trafficking legislation promotes a dangerous idea that everyone in the sex trade is either a victim or a criminal.

“If this bill becomes law, the police will harass us even more,” said Kajol Bose, secretary of the Durbar Mahila Samanwaya Committee, one of India’s largest sex worker organizations. “The number of raids will increase and the number of clients will decrease.”

I believe Indian lawmakers could improve their bill by looking to the strong systems already in place locally across India that prevent forced prostitution.

I conducted anthropological research with Kolkata’s Durbar Mahila Samanwaya Committee, which has a membership of 65,000 people across the state of West Bengal.

The group is based in Sonagachi, Kolkata’s iconic red-light district, which is tucked behind a main artery in the northern part of the city. This bustling and congested labyrinth of narrow alleyways lined by houses, most of which operate as brothels, is home to some 10,000 sex workers. An estimated 20,000 male customers visit Sonagachi daily.


Sex workers in Kolkata’s Sonagachi district wait for customers. AP Photo/Bikas Das

Most Sonagachi brothels are managed by female brothel owners, or “malkins,” who keep half of their employees’ payment.

Most of the women I met working in Sonagachi came from poor, rural villages in India, Bangladesh or Nepal.

Driven by increasing hunger and poverty in formerly agricultural regions, many arrived in Kolkata planning to enter the sex trade because they figured it was the best way to feed themselves and their families. Some can even afford to send money back to their families.
 

Keeping Kolkata’s red light district safe

Other women in Sonogachi were brought there by a friend or husband, and began doing sex work because they felt they had little choice.

This is the kind of exploitation that the sex worker’s union wants to prevent. So, in 1997, the Durbar Mahila Samanwaya Committee founded the “self-regulatory board” to combat trafficking in Sonagachi.

Every morning, between at 10 a.m., peer educators and outreach workers visit area brothels. Since the board is comprised mainly of local sex workers, newcomers to Sonagachi are easily identified.

Women new to the scene are taken for medical evaluation to a local health center called the Abinaash Clinic. Durbar has run the clinic since it took over the government’s HIV/AIDS prevention program in 1997. The STD testing done there prevents the spread of disease in Sonagachi.

A bone ossification test, which gives an age range, helps identify minors. Underage sex workers are handed over to the Child Welfare Committee of Kolkata, a government agency.

Determining whether adult women newly arrived to Sonagachi have been trafficked requires a more extensive investigation. It can take days to get women to open up about how they arrived in Sonagachi and who brought them there.

Many of the women and girls approached by the Durbar are newcomers not just to sex work but to city living in general. They are usually confused by and even fearful of the group’s intervention. They seldom cooperate immediately.

It can take days of gentle questioning before the women start talking. During that process, newcomers to Sonagachi are housed at the nearby Short Stay Home, a residence run by the Durbar Committee.
Ultimately, those determined to have entered the sex trade willingly will be permitted to return to her brothel in Sonagachi. The women usually become members of Durbar and are given a photo ID card that confirms her status as a healthy and consensual sex worker – which usually helps them avoid arrest when police raids occur.
If the self-regulatory board concludes that a new entrant is being coerced into sex work by a trafficker, the authorities are contacted. The woman is usually placed in “shelters” – prison-like detention centers – while the government tries to get her back home.


Anti-trafficking bills hurt more than they help

In my assessment, the Sonagachi method is effective because it starts by recognizing that sex work is a job – one that must be done voluntarily, by consenting adults.

Based on that reality, it puts in place protections that keep trafficked women and children from abuse. The Durbar Committee works closely with local police, alerting them to the presence of minors and trafficked women.

Other red light districts in India, Thailand and beyond have sex worker unions use similar preventive measures to combat trafficking.

Several lawmakers I spoke with in Kolkata during my research dismissed the efforts of Durbar. They say trafficking is rampant in Sonagachi, and that the government must step in.

In my experience, most also see prostitution as a dangerous and immoral act – something that only victims of coercion would do. As a result, the Indian anti-trafficking bill they crafted outlaws the sex trade and punishes all who participate in it.

The proposed law, which includes social services for reintegrating trafficked women into society, may help some women. Organization like the Durbar Committee cannot identify and protect all victims of sexual exploitation in India.

Still, Indian lawmakers could learn something from the frontline community organizations already doing this work. Sex workers can be government partners in the fight against human trafficking – but only if they are not its targets.
 

Simanti Dasgupta, Associate Professor, University of Dayton

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Indian bill to ‘protect’ trafficking victims will make sex workers less safe

Hoping to protect women from sexual exploitation, Indian lawmakers are pushing a bill that amends the criminal code to harden legal and financial penalties for sex trafficking.



The “Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill,” which passed the lower house of India’s parliament in July 2018 and may become law in 2019, seeks to make combat this lucrative, illicit trade.

Not everyone thinks harsh deterrence will work.

Days after it passed in the lower house of India’s Parliament in July, two United Nations experts said the bill leans too heavily on the criminal justice system. Without more of a “human-rights based and victim-centred approach,” the UN special rapporteurs on human trafficking and modern slavery warned, India “risks further harming already vulnerable individuals.”
 

India’s sex trade

According to the Indian government, 4,980 victims of sex trafficking were rescued in the country in 2016.

Sex workers in India oppose the bill that’s ostensibly meant to protect them, saying it inaccurately conflates human trafficking with consensual sex work.

In major Indian cities like Kolkata, Hyderabad and Sangli, sex workers are well organized and politically engaged. Yet no sex worker groups were consulted during the drafting of the legislation.

Community leaders argue that the anti-trafficking legislation promotes a dangerous idea that everyone in the sex trade is either a victim or a criminal.

“If this bill becomes law, the police will harass us even more,” said Kajol Bose, secretary of the Durbar Mahila Samanwaya Committee, one of India’s largest sex worker organizations. “The number of raids will increase and the number of clients will decrease.”

I believe Indian lawmakers could improve their bill by looking to the strong systems already in place locally across India that prevent forced prostitution.

I conducted anthropological research with Kolkata’s Durbar Mahila Samanwaya Committee, which has a membership of 65,000 people across the state of West Bengal.

The group is based in Sonagachi, Kolkata’s iconic red-light district, which is tucked behind a main artery in the northern part of the city. This bustling and congested labyrinth of narrow alleyways lined by houses, most of which operate as brothels, is home to some 10,000 sex workers. An estimated 20,000 male customers visit Sonagachi daily.


Sex workers in Kolkata’s Sonagachi district wait for customers. AP Photo/Bikas Das

Most Sonagachi brothels are managed by female brothel owners, or “malkins,” who keep half of their employees’ payment.

Most of the women I met working in Sonagachi came from poor, rural villages in India, Bangladesh or Nepal.

Driven by increasing hunger and poverty in formerly agricultural regions, many arrived in Kolkata planning to enter the sex trade because they figured it was the best way to feed themselves and their families. Some can even afford to send money back to their families.
 

Keeping Kolkata’s red light district safe

Other women in Sonogachi were brought there by a friend or husband, and began doing sex work because they felt they had little choice.

This is the kind of exploitation that the sex worker’s union wants to prevent. So, in 1997, the Durbar Mahila Samanwaya Committee founded the “self-regulatory board” to combat trafficking in Sonagachi.

Every morning, between at 10 a.m., peer educators and outreach workers visit area brothels. Since the board is comprised mainly of local sex workers, newcomers to Sonagachi are easily identified.

Women new to the scene are taken for medical evaluation to a local health center called the Abinaash Clinic. Durbar has run the clinic since it took over the government’s HIV/AIDS prevention program in 1997. The STD testing done there prevents the spread of disease in Sonagachi.

A bone ossification test, which gives an age range, helps identify minors. Underage sex workers are handed over to the Child Welfare Committee of Kolkata, a government agency.

Determining whether adult women newly arrived to Sonagachi have been trafficked requires a more extensive investigation. It can take days to get women to open up about how they arrived in Sonagachi and who brought them there.

Many of the women and girls approached by the Durbar are newcomers not just to sex work but to city living in general. They are usually confused by and even fearful of the group’s intervention. They seldom cooperate immediately.

It can take days of gentle questioning before the women start talking. During that process, newcomers to Sonagachi are housed at the nearby Short Stay Home, a residence run by the Durbar Committee.
Ultimately, those determined to have entered the sex trade willingly will be permitted to return to her brothel in Sonagachi. The women usually become members of Durbar and are given a photo ID card that confirms her status as a healthy and consensual sex worker – which usually helps them avoid arrest when police raids occur.
If the self-regulatory board concludes that a new entrant is being coerced into sex work by a trafficker, the authorities are contacted. The woman is usually placed in “shelters” – prison-like detention centers – while the government tries to get her back home.


Anti-trafficking bills hurt more than they help

In my assessment, the Sonagachi method is effective because it starts by recognizing that sex work is a job – one that must be done voluntarily, by consenting adults.

Based on that reality, it puts in place protections that keep trafficked women and children from abuse. The Durbar Committee works closely with local police, alerting them to the presence of minors and trafficked women.

Other red light districts in India, Thailand and beyond have sex worker unions use similar preventive measures to combat trafficking.

Several lawmakers I spoke with in Kolkata during my research dismissed the efforts of Durbar. They say trafficking is rampant in Sonagachi, and that the government must step in.

In my experience, most also see prostitution as a dangerous and immoral act – something that only victims of coercion would do. As a result, the Indian anti-trafficking bill they crafted outlaws the sex trade and punishes all who participate in it.

The proposed law, which includes social services for reintegrating trafficked women into society, may help some women. Organization like the Durbar Committee cannot identify and protect all victims of sexual exploitation in India.

Still, Indian lawmakers could learn something from the frontline community organizations already doing this work. Sex workers can be government partners in the fight against human trafficking – but only if they are not its targets.
 

Simanti Dasgupta, Associate Professor, University of Dayton

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

My body is my piece of land

01 Oct 2017

Stories of migrant sex workers often cast human smugglers as the villains, yet the biggest evil many migrants face is their hopeless debt in their home country.
 

Thailand. Roberto Trombetta/Flickr. CC (by-nc)

A Thai woman sits alone behind the blinds in a brothel in a forest in Northern Denmark. She’s waiting for customers. She’s been selling sex in Denmark for two years now. She has no legal papers. It’s hard and lonely work, but she earns well. When a car drives up the gravel track behind the house, she looks out through a crack in the blinds. She keeps an eye open for the police. She’s scared of being discovered and deported to Thailand.

Migration and migrant sex work very often are long-distance debt restructuring.

In her two years in Denmark, she’s taken her family out of a 20-year-long mire of debt. A hospital admission for her father suffering from cancer, a failed maize-farm project, a tractor, a new roof and gambling debts have resulted in one loan after the other.

I have known her family for several years and I drove around with her mother and brother in north-east Thailand as part of a research project about irregular migration of women to Europe. I saw how they could finally repay the family’s old and crippling debts with money earned by the daughter at the brothel in Denmark. There was also enough left over to buy a flat-screen television and a large new sofa. From Denmark, the daughter proudly followed our journey via Facetime.

Debt is the villain, not smuggling

Of course it’s true: human smuggling and trafficking can be brutal. Both can be violent, even deadly, and are good business in the migration market created by the EU migration policy. Smugglers earn money because in order to finance the journey to Europe and to repay the old loans, many migrant families take out yet more loans to pay for the smuggling.

Yet, although debt is a powerful motive for migration, debt is completely absent from the migration debate. Debt seems dry and boring compared with sensational stories of gruesome human smugglers and sex slaves. Nevertheless, the reality is that migration and migrant sex work very often are long-distance debt restructuring. Here we are talking about the millions of families in the global south trapped in a vicious circle of debt, not those fleeing bombs and conflict.

We’ve only got one life

Private debt – both related and unrelated to migration – has grown among the migrants who, as an anthropologist and migration researcher, I have been following for 15 years.

“Why do you borrow money?” I asked a young woman in Benin City, southern Nigeria, from where many make the journey to Europe to sell sex. “We haven’t got time to wait and save up like my grandparents in the olden days”, she explained. “We’ve only got one life and we want to get the most out of it”.

The frustrating problem is that not even the educated, yet unemployed middle classes in Nigeria can borrow money from a bank to start so much as the smallest of projects. In Thailand, I interviewed the manager of the local branch of one of Thailand’s largest banks. “We don’t lend money for migration. It’s an uncertain investment”, he said. “Neither do we lend money to people with seasonal work, day workers or the unemployed. They’re all unreliable payers”.

Yet, millions of people in the global south are seasonal workers, day workers, without a contract and unemployed. Therefore, when serious illness, a new roof, an essential scooter, or a business start-up demands cash, they have to resort the “no-questions-asked” policy in the private market; with interest rates of up to 100% and brutal debt collection methods. In Thailand, people watch in terror when the young men in anonymous crash helmets arrive at the village on their motorbikes. Everyone knows that they’ve come to collect unpaid debt.

The Microfinance Barometer 2016 confirms that private debt due to informal quick-loan companies, local big men, rich landowners, mafia, wealthy families and middle-men is growing explosively in the global south. The World Bank is also concerned. As it wrote in 2015, approximately 70% of micro, family-run businesses to slightly larger businesses have no access to borrow money on a formal and reasonable market. Therefore, they resort to private and black-market loans at extortionate rates of interest. The problem is particularly serious in Asia and Africa, from where most migrants to Europe originate.

Selling sex to keep the land

 “My body will get my family out of debt”, explains a Thai woman with false papers on her way to Denmark via Spain to sell sex. Her family owes money, but they still have a small piece of land. They could easily sell the land and repay all the debt. But, she continues, “it’s better to keep the land than to use it to repay our debt … My body is like a piece of land that I can take with me, but it’s falling in value all the time. Land in Thailand doesn’t”.

“My body will get my family out of debt”

If we are to understand migration, and perhaps implement more innovative policies in the area, we have to examine tiny details and rationalities like these. We have to understand the reasoning behind these pragmatic, at times seemingly cynical choices, when money is tight and interest rates are extortionate.

Migrants are taking ever greater risks to release themselves or their families from the clutches of debt. The deeper underground a woman lives, for example working alone in a brothel so that she can have all the customers for herself, the more she earns. Working in Europe’s red-light district means avoiding the police and keeping below the radar. If you owe money and are afraid of being deported, you have to earn as much as possible and as fast as possible; before things go wrong. Even if this means sitting alone in a brothel in a forest or crossing the Mediterranean in an unseaworthy boat.

Debt policy is migration policy

What does other people’s debt have to do with us? We’ve got enough debt ourselves, and they made their own choice to borrow the money in the first place. Unfortunately, families’ debt in the global south increasingly has a lot to do with the EU, the United States and other migrant receiving countries. Debt and migration are linked, as is more than apparent when migrants cross the border to sell sex in a brothel in a forest somewhere in Europe.

In other words, debt and bank policy are migration policy. Without addressing the former the root causes of the latter cannot be altered. Intercepting the smugglers and planning an anti-trafficking awareness campaign only treats the symptoms. Even criminalising the purchase of sex has a negligible effect on the prevalence of migrant prostitution. Why? These surface-level initiatives don’t even attempt to reach the root cause of the phenomenon: unemployment and debt.
Some programmes in Thailand, for reasons of migration or otherwise, do target debt. In order to avoid the clutches of fast consumer loans, the very poorest can take out interest-free loans from the government to buy agricultural machinery and sowing seed. So far this has been small-scale and the effects cannot easily be measured, but it does show that the home countries are well aware that debt is often a trigger.

Looking at migration as a consequence of debt in a variety of scenarios raises many questions. Could we work out large-scale, debt-restructuring models for migrant families that avoid the pitfalls of micro-loans? Could states foster better migration policies and healthier loans in the areas migrants originate, serving as state guarantor so people without long term job contracts could borrow money at non-extortionate rates?

Could the EU bring as much weight to bear against unscrupulous loan sharks in Europe and overseas as it has against human smugglers since 2012? The millions of Euros spent on surveilling smugglers might be put to better use investigating illegal money lending and, in the worst cases, protecting witnesses to break the cycle of fear, intimidation and even violence that trap families in debt and migration. Asking how we might change the structural factors constraining migrants’ lives, such that they may choose to migrate but have viable alternatives to doing so, puts migrants’ well-being centre stage while fostering healthier migration policies at the same time.

Private debt is often kept secret; it is complex, shameful and sometimes criminal. Therefore, to deal with debt and migration in tandem will require nuanced, sensitive, and innovative solutions. Because debt migration won’t go away on its own. As a Thai woman explained: “We’re getting much better at paying back our debt, because more of us are going to Europe”.

Dr. Sine Plambech is a Researcher, Anthropologist and Film Director working on irregular migration, trafficking, sex work, and documentary filmmaking.

This story was first published on openDemocracy.
 

My body is my piece of land

Stories of migrant sex workers often cast human smugglers as the villains, yet the biggest evil many migrants face is their hopeless debt in their home country.
 

Thailand. Roberto Trombetta/Flickr. CC (by-nc)

A Thai woman sits alone behind the blinds in a brothel in a forest in Northern Denmark. She’s waiting for customers. She’s been selling sex in Denmark for two years now. She has no legal papers. It’s hard and lonely work, but she earns well. When a car drives up the gravel track behind the house, she looks out through a crack in the blinds. She keeps an eye open for the police. She’s scared of being discovered and deported to Thailand.

Migration and migrant sex work very often are long-distance debt restructuring.

In her two years in Denmark, she’s taken her family out of a 20-year-long mire of debt. A hospital admission for her father suffering from cancer, a failed maize-farm project, a tractor, a new roof and gambling debts have resulted in one loan after the other.

I have known her family for several years and I drove around with her mother and brother in north-east Thailand as part of a research project about irregular migration of women to Europe. I saw how they could finally repay the family’s old and crippling debts with money earned by the daughter at the brothel in Denmark. There was also enough left over to buy a flat-screen television and a large new sofa. From Denmark, the daughter proudly followed our journey via Facetime.

Debt is the villain, not smuggling

Of course it’s true: human smuggling and trafficking can be brutal. Both can be violent, even deadly, and are good business in the migration market created by the EU migration policy. Smugglers earn money because in order to finance the journey to Europe and to repay the old loans, many migrant families take out yet more loans to pay for the smuggling.

Yet, although debt is a powerful motive for migration, debt is completely absent from the migration debate. Debt seems dry and boring compared with sensational stories of gruesome human smugglers and sex slaves. Nevertheless, the reality is that migration and migrant sex work very often are long-distance debt restructuring. Here we are talking about the millions of families in the global south trapped in a vicious circle of debt, not those fleeing bombs and conflict.

We’ve only got one life

Private debt – both related and unrelated to migration – has grown among the migrants who, as an anthropologist and migration researcher, I have been following for 15 years.

“Why do you borrow money?” I asked a young woman in Benin City, southern Nigeria, from where many make the journey to Europe to sell sex. “We haven’t got time to wait and save up like my grandparents in the olden days”, she explained. “We’ve only got one life and we want to get the most out of it”.

The frustrating problem is that not even the educated, yet unemployed middle classes in Nigeria can borrow money from a bank to start so much as the smallest of projects. In Thailand, I interviewed the manager of the local branch of one of Thailand’s largest banks. “We don’t lend money for migration. It’s an uncertain investment”, he said. “Neither do we lend money to people with seasonal work, day workers or the unemployed. They’re all unreliable payers”.

Yet, millions of people in the global south are seasonal workers, day workers, without a contract and unemployed. Therefore, when serious illness, a new roof, an essential scooter, or a business start-up demands cash, they have to resort the “no-questions-asked” policy in the private market; with interest rates of up to 100% and brutal debt collection methods. In Thailand, people watch in terror when the young men in anonymous crash helmets arrive at the village on their motorbikes. Everyone knows that they’ve come to collect unpaid debt.

The Microfinance Barometer 2016 confirms that private debt due to informal quick-loan companies, local big men, rich landowners, mafia, wealthy families and middle-men is growing explosively in the global south. The World Bank is also concerned. As it wrote in 2015, approximately 70% of micro, family-run businesses to slightly larger businesses have no access to borrow money on a formal and reasonable market. Therefore, they resort to private and black-market loans at extortionate rates of interest. The problem is particularly serious in Asia and Africa, from where most migrants to Europe originate.

Selling sex to keep the land

 “My body will get my family out of debt”, explains a Thai woman with false papers on her way to Denmark via Spain to sell sex. Her family owes money, but they still have a small piece of land. They could easily sell the land and repay all the debt. But, she continues, “it’s better to keep the land than to use it to repay our debt … My body is like a piece of land that I can take with me, but it’s falling in value all the time. Land in Thailand doesn’t”.

“My body will get my family out of debt”

If we are to understand migration, and perhaps implement more innovative policies in the area, we have to examine tiny details and rationalities like these. We have to understand the reasoning behind these pragmatic, at times seemingly cynical choices, when money is tight and interest rates are extortionate.

Migrants are taking ever greater risks to release themselves or their families from the clutches of debt. The deeper underground a woman lives, for example working alone in a brothel so that she can have all the customers for herself, the more she earns. Working in Europe’s red-light district means avoiding the police and keeping below the radar. If you owe money and are afraid of being deported, you have to earn as much as possible and as fast as possible; before things go wrong. Even if this means sitting alone in a brothel in a forest or crossing the Mediterranean in an unseaworthy boat.

Debt policy is migration policy

What does other people’s debt have to do with us? We’ve got enough debt ourselves, and they made their own choice to borrow the money in the first place. Unfortunately, families’ debt in the global south increasingly has a lot to do with the EU, the United States and other migrant receiving countries. Debt and migration are linked, as is more than apparent when migrants cross the border to sell sex in a brothel in a forest somewhere in Europe.

In other words, debt and bank policy are migration policy. Without addressing the former the root causes of the latter cannot be altered. Intercepting the smugglers and planning an anti-trafficking awareness campaign only treats the symptoms. Even criminalising the purchase of sex has a negligible effect on the prevalence of migrant prostitution. Why? These surface-level initiatives don’t even attempt to reach the root cause of the phenomenon: unemployment and debt.
Some programmes in Thailand, for reasons of migration or otherwise, do target debt. In order to avoid the clutches of fast consumer loans, the very poorest can take out interest-free loans from the government to buy agricultural machinery and sowing seed. So far this has been small-scale and the effects cannot easily be measured, but it does show that the home countries are well aware that debt is often a trigger.

Looking at migration as a consequence of debt in a variety of scenarios raises many questions. Could we work out large-scale, debt-restructuring models for migrant families that avoid the pitfalls of micro-loans? Could states foster better migration policies and healthier loans in the areas migrants originate, serving as state guarantor so people without long term job contracts could borrow money at non-extortionate rates?

Could the EU bring as much weight to bear against unscrupulous loan sharks in Europe and overseas as it has against human smugglers since 2012? The millions of Euros spent on surveilling smugglers might be put to better use investigating illegal money lending and, in the worst cases, protecting witnesses to break the cycle of fear, intimidation and even violence that trap families in debt and migration. Asking how we might change the structural factors constraining migrants’ lives, such that they may choose to migrate but have viable alternatives to doing so, puts migrants’ well-being centre stage while fostering healthier migration policies at the same time.

Private debt is often kept secret; it is complex, shameful and sometimes criminal. Therefore, to deal with debt and migration in tandem will require nuanced, sensitive, and innovative solutions. Because debt migration won’t go away on its own. As a Thai woman explained: “We’re getting much better at paying back our debt, because more of us are going to Europe”.

Dr. Sine Plambech is a Researcher, Anthropologist and Film Director working on irregular migration, trafficking, sex work, and documentary filmmaking.

This story was first published on openDemocracy.
 

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Subscribe to Sex workers