At the core of the Supreme Court’s recent judgment on human trafficking and sex work is an important distinction. India’s legal and law enforcement systems have continued to approach cases in both areas with a largely similar set of responses. The apex court’s ruling can positively reshape these responses of the State, making it accountable for protecting the rights of women in either situation. A bench of Justices J B Pardiwala and R Mahadevan noted that the Immoral Traffic [Prevention] Act (ITPA) has failed to recognise the rights of voluntary adult sex workers and ensure their protection. It noted that the statute’s silence on the matter deepened the social stigma they face, resulting in their marginalisation and exploitation. The Court made an important observation when it said, “…the rights of sex workers can exist without there being a right to sex work.”
The ITPA follows uniform processes to rescue and rehabilitate women, irrespective of their circumstances. Under its provisions, trafficking victims and voluntary sex workers are placed in protective custody before rehabilitation measures are initiated. The Court said there should be an initial inquiry before placing adults in protective custody. It stipulated that in cases of sex work, recognition of consent should inform rehabilitation decisions. Welfare measures cannot override individual choice. The central principle is that a person who identifies herself as a sex worker by choice has the right to practise her profession; the State cannot take that right away. Since the ITPA treats all sex work within the ambit of trafficking, it also leads to harassment of the very victims the law is meant to protect. The Court has sought from the government a re-examination of the legislative framework that conflates sex trafficking with sex work.
Significantly, it prescribed to the State a new approach to trafficking. The Court emphasised rehabilitation, reintegration, and long-term protection of trafficked women. It directed that a victim protection plan be formulated, aimed at setting minimum standards for shelter homes and offering mental health support, legal aid, education, vocational training, and safeguards against re-trafficking. Trafficking of women is a multi-billion-dollar business within and outside the country, operated through organised networks supported by powerful interests. While dismantling these criminal networks will take strong, coordinated action, the Court’s directives are aimed at addressing legal gaps through the lens of rights and dignity. These guidelines need to be followed up with political will and administrative capacity-building. Their impact will also hinge on a responsive and sensitised society. (Source: DH)
