Voluntary sex work not illegal, police can't harass consenting adults: Supreme Court
In a landmark ruling aimed at addressing the concerns of victims of trafficking for commercial sexual exploitation, the Supreme Court has held that the consent of adult sex workers must be the primary consideration in decisions on rehabilitation, reintegration and placement in protective homes.
The Supreme Court, while analysing the Immoral Traffic (Prevention) Act (ITPA), observed that the provisions of the 70-year-old law do not empower the police to crack down on adults engaged in voluntary sex work, as the practice itself is not illegal. The court further noted that while running a brothel is illegal, voluntary sex workers found during raids should not be victimised or taken into custody.
Issuing directions to authorities on the rehabilitation of sex workers, a bench comprising Justice JB Pardiwala and Justice R Mahadevan said the police should refrain from harassing adults participating in sex work of their own free will.
“Its reasoning was simple; since such women are engaged in prostitution voluntarily, the question of their 'rescue' does not arise," the bench said, as reported by Live Law.
The court also stressed that no sex worker should be rehabilitated against their will and that any rehabilitation process should not be coercive in nature, but voluntary on the part of the sex workers.
“The constitutional right to rehabilitation obligates the State to provide victims with the means and support to pursue rehabilitation. However, it does not authorise the State to impose a rehabilitative process upon her against a victim's will," the court added.
In a landmark ruling aimed at addressing the concerns of victims of trafficking for commercial sexual exploitation, the Supreme Court has held that the consent of adult sex workers must be the primary consideration in decisions on rehabilitation, reintegration and placement in protective homes.
The ruling came while a division bench was hearing a miscellaneous plea seeking guidelines and directions to protect the fundamental rights of victims of trafficking for commercial sexual exploitation. Accepting a submission by Senior Advocate Aparna Bhat on the preparation of a Victim Protection Plan, the court said victims cannot be treated as passive objects of rescue and rehabilitation and that their choices and autonomy must be respected.
The court also rejected what it described as paternalistic assumptions under the existing framework of Section 17 of the ITPA. It noted that the provision often treats all persons rescued from prostitution-related situations in the same manner, regardless of whether they were trafficked, coerced, or had voluntarily engaged in sex work.
According to the bench, such a "one-size-fits-all" approach does not take into account the different realities of those produced before magistrates. The court's ruling places emphasis on consent and individual circumstances in matters concerning rehabilitation and protective placement.
The judgment, delivered in the course of proceedings on a plea for safeguards for victims of trafficking for commercial sexual exploitation, underscores that decisions affecting adult sex workers must be guided by their consent, autonomy and the specific facts of each case.