The Supreme Court has moved to protect adult women engaged in voluntary sex work from being subjected to the same legal process as victims of human trafficking, directing the National Judicial Academy to frame a uniform protocol for magistrates to determine whether rescued women were forced into commercial sexual exploitation or were engaged in the work voluntarily.
AHTUs as police stations
The court also stressed that rehabilitation cannot be imposed against a victim’s will as a matter of routine. The State’s obligation is to provide the support and means necessary for rehabilitation, while respecting the individual’s choices, dignity and circumstances. The court also directed all state and Union Territory governments to give Anti-Human Trafficking Units (AHTUs) the status of police stations by issuing appropriate notifications in accordance with law. The Union government has been asked to take up the issue with all states and Union territories and ensure that the notifications are issued at the earliest.
In its May 29 judgment, the Supreme Court held that the Immoral Traffic (Prevention) Act, or ITPA, must not be used to subject adult voluntary sex workers to the same rescue, custody and rehabilitation procedures meant to protect victims of trafficking. Because they are found in a brothel, it underscored that prostitution, in itself, is not an offence under the law and that voluntary adult sex workers must not be arrested, penalised, harassed or victimised during raids merely.
The court has now sought to ensure that its extensive victim protection framework is implemented uniformly, acknowledging that judicial directions often risk remaining confined to judgments without any reliable assessment of their impact on the ground. The latest order followed a compliance review in which the court found that several states and Union territories had yet to implement four additional directions issued in May. It also asked the Union government to obtain detailed compliance reports from all stakeholders involved in the victim protection plan and directed the petitioner and the Centre to suggest concrete mechanisms to track its progress and effectiveness. At the same time, the court made clear that the possibility of coercion cannot become a justification for indiscriminate detention. The May judgment held that a victim’s consent must be the primary consideration in decisions on long-term custody in a protective home or restoration to her family. A magistrate may depart from her expressed wishes only in exceptional circumstances, such as when her safety is at risk or her consent is found to be the product of coercion, tutoring or undue influence, and must record reasons in writing. It had also made recommendations for the Union government’s consideration. The court has now directed the Centre to ensure that all states and Union territories fully comply with four additional requirements set out in the May judgment — notifying recognised welfare institutions and organisations for the purposes of the ITPA; preparing state-wide lists of eligible social welfare workers for advisory boards and magistrates’ panels; designating a police nodal officer; and designating a government nodal officer.
The directions, issued recently by a bench of justices JB Pardiwala and R Mahadevan, build on the court’s May 29 judgment in a 2004 public interest litigation filed by NGO Prajwala. In its May judgment, the Supreme Court had laid down an extensive victim protection plan under Article 142 of the Constitution and dealt with the proposal for an Organised Crime Investigation Agency.
The bench said these arrangements were essential for implementing the victim protection plan at the ground level.
