New Delhi: In a landmark judgement, the Supreme Court, on Monday, said that provisions of the 70-year-old Immoral Traffic (Prevention) Act (ITPA) do not empower the police to crack down on adults engaged in voluntary sex work, as the practice itself is not illegal.
While running a brothel is illegal, voluntary sex workers found during raids should not be victimised or taken into custody, the Court ruled.
The bench of Justice J B Pardiwala and Justice R Mahadevan, while issuing directions to authorities on the rehabilitation of sex workers, said the police should refrain from harassing adults participating in sex work of their own free will, as reported by India Today.
“Its reasoning was simple; since such women are engaged in prostitution voluntarily, the question of their ‘rescue’ does not arise,” the bench said.
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 Court further ruled.
“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 the ruling aimed at addressing the concerns of victims of trafficking for commercial sexual exploitation, the Supreme Court held that the consent of adult sex workers must be the primary consideration in decisions on rehabilitation, reintegration and placement in protective homes.
The bench was hearing a miscellaneous plea seeking guidelines and directions to protect the fundamental rights of victims of trafficking for commercial sexual exploitation when it passed the order.
The Court accepted a submission by senior advocate Aparna Bhat on the preparation of a Victim Protection Plan, and said victims cannot be treated as passive objects of rescue and rehabilitation and that their choices and autonomy must be respected.
The bench 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.
Such a “one-size-fits-all” approach does not take into account the different realities of those produced before magistrates, the Court observed, laying emphasis on consent and individual circumstances in matters concerning rehabilitation and protective placement.