In a key ruling aiming to mitigate the concerns of the victims of trafficking for commercial sexual exploitation (CSE), the Supreme Court has held that the consent of adult sex workers must be the primary consideration in decisions relating to rehabilitation, reintegration, and placement in protective homes.
While adjudicating a miscellaneous plea seeking guidelines and directions to protect the fundamental rights of victims of trafficking for CSE, a bench of Justices J.B. Pardiwala and R. Mahadevan, accepting Senior Advocate Aparna Bhat submission, regarding the preparation of a 'Victim Protection Plan', held that victims cannot be treated as passive objects of rescue and rehabilitation, and that their choices and autonomy must be respected.
The Court rejected the paternalistic assumptions under the existing framework i.e., Section 17 of the Immoral Traffic (Prevention) Act, 1956 (ITPA), which often treats all persons rescued from prostitution-related situations in the same manner, irrespective of whether they were trafficked, coerced, or voluntarily engaged in sex work.
According to the bench, such a "one-size-fits-all" approach fails to account for the diverse realities of those brought before magistrates. “It is the victim's life, liberty, and future that the order will determine, and thus it would be incongruous to hold that all of this can be decided without any regard for what the victim wants.”, the Court observed.
Instead, the Court held that when an adult person is produced before a magistrate under Section 17, a threshold inquiry must first be conducted to determine whether the individual is a voluntary adult sex worker and whether she wishes to be placed in long-term protective custody.
The inquiry must determine whether the individual considers herself to be engaging in Commercial Sex Work voluntarily; whether she wishes to be placed in long-term safe custody; whether any expressed preference is genuinely voluntary. The Court directed that social workers should assist in this process through a preliminary assessment, but stressed that the victim's own statement must receive primacy.
A magistrate may disregard the victim's wishes only in exceptional situations where release would expose her to a serious safety risk or where the expressed consent appears to be the product of coercion, threats, tutoring, or undue influence. Any departure from the victim's wishes must be supported by written reasons.
Referring to the case Budhadev Karmaskar v. State of W.B., (2022) , where while issuing certain directions pertaining to the rehabilitation of sex workers/prostitutes, the Court observed that the police must refrain from 'interfering' if it is found that the sex worker is an adult participating in the trade with consent and during a raid on any brothel, voluntary sex workers must not be harassed or victim
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