Prakash Kamat
Panaji,May 27- As regards the Supreme Court ruling in the Criminal Appeal No (S) 135/2010, Budhadev Karmaskar Vs The State of Bengal & ORS on 19/05/2022, there appears to be a big misunderstanding regarding the order/directions/observations of the Supreme Court,says Arun Pandey, Director, Arz (anti sex trafficking NGO).
"Supreme Court has not legalised prostitution but decriminalised prostitution”.
The decriminalization of sex work is the removal of criminal penalties for sex work.
Decriminalization is distinct from legalization.
The Supreme Court has not legalised commercial sexual activity, but instead decriminalised commercial sexual activity for the women in commercial sexual activity.
In-fact the Supreme Court has reiterated what is already laid down in the special law,
Immoral Traffic Prevention, 1956 & IPC. ITPA & IPC, provides for action against those iinvolved in commercialisation of sexual activity and involved in recruiting, selling, buying aandsurviving on the earnings of women in prostitution.
The special law does not provide for prosecution of women involved in commercial sexual activity.
Apex Court has talked about Arrest & long- term detention at protective home of adult women in prostitution.
Arrest Vs Rescue:
In large number cases in India the women in Prostitution are arrested and not rescued by police.
The Supreme Court has rightly ordered that, women in prostitution should not be criminally prosecuted for being prostitution. Because the experience has shown that criminal prosecution of women in prostitution leads to their further dependence on their exploiter and leading to becoming “bonded sex slaves”.
Mr. Pandey further says that the present Supreme Court direction/order does not prevent the police to rescue the women in prostitution under sec 15 of ITPA and lodging them in protective home.
Short term Stay Vs. Long term incarceration at Protective Home/Shelter Home:
In large number of cases in India post rescue of women from prostitution proper inquiry is not conducted and women continues to languish at protective for years.
The Apex court has rightly stated that an adult person should not be kept at the protective home/shelter home for 2 -3 years only because she wishes to continue in prostitution or her relatives are unfit to take the custody. A long term forced stay at protective home/shelter home is noting but a forced incarceration.
The women in prostitution requires community-based rehabilitation which includes psychosocial services and livelihood alternative. Rehabilitation can’t be forced on a woman only because she is in prostitution.
The apex court order has only reiterated that the women in prostitution should not be illtreated and victimised by the law enforcement agencies.
The apex court order no where STOPS the police to act against the pimps, brothel keepers, clients and those surviving on the earnings of women in prostitution.
"The apex court has rightly said, what we at Arz, NGO has been advocating,that the girls and women in prostitution should be rescued and not arrested," reiterates Mr. Pandey.
After rescue they should be admitted at the protective home and an inquiry should be conducted in a victim- friendly manner and post inquiry if the victims want rehabilitation, she should be provided non shelter based rehabilitation and in case she wishes to go back to prostitution she should be allowed.
In Goa, generally the recent direction of the Apex Court is already being followed.
1. Girls in prostitution are rescued and not arrested.
2. After rescue the girls are admitted at the protective home for safe custody and protection.
3. The magistrate conducts an inquiry in a victim friendly manner (It is only in Goa that the magistrate visits the protective home along with 5 social workers and conducts an inquiry for her release and rehabilitation).
4. The rescued victims are generally at the protective home for 20 to 3O days.
5. Only those victims are for longer period who are foreign nationals and their documentation for return is pending with their embassy or those from India who needs to be escorted to their home state.
6. In Goa if the victims are from Goa, all of them are offered alternative livelihood by Arz, NGO.
7. Sex workers are being issued Aadhar card and Voting Card.
Goa is a destination State and the girls and women are trafficked from different States and countries to Goa for commercial sexual exploitation. The law enforcement agencies should study the judgement properly and should not misunderstand that prostitution has been legalised. The police should continue rescue, Department of Women and Child Development should provide proper services to the rescued victim at the protective home and the magistrate should in time bound period,(withing 21 days) pass final order, to enable the release of the girls from protective home,says Mr. Pandey.(eom)
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