This article was written by Pawan Kumar, pursuing the Diploma in Corporate Litigation from LawSikho, and edited by Koushik Chittella.
Introduction
Sex work is considered the world’s oldest profession. Even in India, it is believed that it has existed since ancient times. There has been discourse on sex work surrounded by the debates on legalisation and decriminalisation. The debates and discussions generally focus on the dignity of sex workers and the need to protect their rights. The tussle between morality and legality makes the discussion complex and challenging. Some argue for legalisation or decriminalisation in order to ensure their rights have been protected, while others will argue for complete prohibition or stringent regulations because of moral concerns. From a legal standpoint, sex work is not prohibited. Still, activities like soliciting in public places, pimping, running a brothel, etc. are considered illegal under the Immoral Trafficking (Prevention) Act, 1956. Whereas morally, people’s views and understanding vary across India. Some see it as a matter of one’s own choice, while for others, it is exploitative and immoral.
There are some nations that have legalised the profession, such as Germany, New Zealand, Brazil, Canada, Belgium, the Netherlands, France, etc., in order to ensure proper regulation. While many African countries have entirely put a ban on prostitution, and in some countries like Saudi Arabia, there are severe punishments for prostitution. In India, certain aspects of it are prohibited.
In a recent order dated May 19, 2022, the Apex Court has issued numerous directions (or guidelines) to the government under Article 142 of the Constitution regarding the human rights and working conditions of sex workers. These directives were based on the recommendation of the court-appointed panel, which was constituted in 2011. The Supreme Court stated in the order that these directions are only temporary in nature, until the legislature steps in by passing proper legislation. The guidelines of the Hon’ble Supreme Court signifies an important step towards recognising and protecting the rights of sex workers in India.
Supreme Court’s direction under Article 142
Background
Budhadev Karmaskar, the accused, entered a brothel on the night of September 17, 1999, on Jogen Dutta Lane, situated in Calcutta, and attacked and brutally killed a sex worker. He was convicted by the trial court under Section 302 of the IPC, and later, this conviction was upheld by the Calcutta High Court. When the case reached the Apex Court, on appeal, the hon’be court dismissed Karmaskar’s appeal and invoked Article 21 of the Constitution and emphasised that a right to dignified life is available for sex workers. The Apex Court issued a slew of directions to the Central and State Governments for the rehabilitation of sex workers across India. The case went on running for approximately more than a decade and proved to be critical at every stage in terms of providing relief to the working conditions of sex workers across the country. Article 21 of the Constitution played a significant role in guaranteeing protection for one’s life and personal liberty, which the Apex Court in Francis Coralie Mullin vs. Administrator extended the scope to mean one’s right to a dignified life.
On July 19, 2011, a panel was constituted by the Supreme Court under the Chairmanship of Pradip Ghosh and comprising Mr. Jayant Bhushan as the Senior Counsel, President/Secretary of Usha Multipurpose Co-operative Society, President/Secretary of Durbar Mahila Samanwaya Committee, and Ms. Saima Hasan from Roshni to give recommendations relating to rehabilitation of sex workers, prevention of trafficking, and establishing conditions conducive so that sex workers could live with dignity.
The panel submitted a comprehensive report after having a detailed discussion with all the concerned stakeholders and submitted its recommendation in 2016. The Government of India considered the recommendations made by the panel, and a draft of legislation was prepared for the same. However, the draft bill could not take the ultimate shape for several reasons. Therefore, on 19th May 2022, the Supreme Court bench comprising Justice B.R. Gavai, L. Nageswara Rao, and A.S. Bopanna, by exercising its power conferred under Article 142, issued several directions to the government based on recommendations made by the panel under the provision of Article 21 of the Constitution.
Regarding the acceptance of recommendations made by the Court-appointed panel, the Government of India has expressed certain reservations but agreed with certain recommendations.
Recommendations that weren’t agreed
1. Equal protection of the law for sex workers. Equal application of criminal law based on ‘age’ and ‘consent’. Police should not interfere or take any criminal action against an adult and consenting sex worker. The police must take the complaints of sex workers relating to any criminal, sexual, or any other type of offence seriously and should act as per the law.
2. In case of a raid on any brothel, the police should not arrest, harass, penalise, or victimise any sex workers because voluntary sex work is not unlawful and running a brothel is illegal.
3. Sex workers and/or their representatives must be involved by the government in all decision-making processes by including them in the decision-making authorities, panel, and/or by considering their views on any decision that will affect them.
4. The child of the sex worker should not be separated from their mother just because she is in the sex trade. Even if a minor is found living with a sex worker or in a brothel, it should not be alleged that the child is trafficked. If the sex worker claims that the minor is her child, then tests can be done to know whether it is true or not, and if the claim is correct, then the child should not be forcibly separated from her mother.
Recommendations that were agreed
1. Immediate medical assistance should be provided to any sex worker victim of sexual assault as per Section 357C of CrPC along with the “Guidelines and Protocols: Medico-legal Care for Survivors/Victims of Sexual Violence” issued by the Ministry of Health and Family Welfare in the year 2014.
2. A survey of all ITPA protective homes by the state governments to find the number of adult women detained against their will and can be released within a prescribed time.
3. Sex workers should be treated with dignity and should not be abused either verbally or physically by the police and other law enforcement agencies. They should not be subject to violence or forced into any sexual activity.
4. An appropriate guideline must be issued by the Press Council of India with respect to not revealing the identities of sex workers at the time of the raid, rescue operations, and arrest, either as victims or accused. And should not telecast or publish any pictures that would lead to disclosure of such identities. Section 354C of the IPC should be applied strictly against electronic media.
5. Things that sex workers use for their health and safety, like condoms, must not be considered an offence and should not be taken as evidence of the commission of an offence.
6. The government should organise workshops to educate sex workers about their rights with regard to the legality of sex work and the rights and obligations of the police under the law. This can be done through the District Legal Service Authority, State Legal Service Authority, and National Legal Service Authority. To prevent unnecessary harassment by the police or traffickers and to defend their rights, it is vital for sex workers to get informed on how to get the help of the judiciary.
The impact of the guidelines issued by the Hon’ble Supreme Court of India
The Hon’ble Supreme Court’s recent guidelines issued on sex work provide a significant shift in the legal landscape, which aims to protect sex workers’ rights while addressing the issues of trafficking and exploitation. The guidelines issued by the Hon’ble Court, rooted in the recognition of sex work as a legitimate profession, intend to offer legal protection and greater dignity to those engaged in it. This decision comes after years of advocacy for recognising the rights of sex workers as human rights.
The impact of these guidelines has multiple facets. On one hand, they provide a legal framework that will acknowledge the profession and limit the criminalisation of consensual adult sex work. This step towards destigmatization of sex work will offer protection to the sex workers under the law and will ensure their access to justice, healthcare, and other fundamental rights. The guideline mandates police and other law enforcement agencies refrain from unwarranted intrusions and prosecutions of those engaged in consensual sex work, which is a crucial development in safeguarding sex workers from exploitation, violence, and harassment.
Furthermore, the guidelines emphasise the need for police officers and law enforcement agencies to be briefed about the rights of sex workers. It is a crucial step in preventing abuse and ensuring that sex workers should be treated with dignity and respect should be accorded to like any other profession. The guideline also addresses the issue of identity documentation, which is one of the barriers that has prevented sex workers from taking benefits of or accessing government schemes. By acknowledging these issues, the guidelines have paved the way for their inclusion in several welfare schemes and other forms of social support.
However, there are several challenges to the implementation of these guidelines. The social stigma surrounding sex work remains severely entrenched, and the implementation will require a concerted effort from the government as well as from society. The effectiveness of these guidelines will mainly depend on how well they are implemented and enforced and whether they lead to noticeable improvements in the lives of sex workers. There is a need for further legal reforms to address the gaps that are still there for the protection of sex workers, particularly their right to work in conditions free from violence and exploitation.
The Immoral Traffic (Prevention) Act, 1956
The Suppression of Immoral Traffic in Women and Girls Act was passed and enacted in 1956 as a consequence of India’s signing of the International Convention in New York for the Prevention of Immoral Traffic. After the amendments in 1986, the Act was renamed to the Immoral Traffic (Prevention) Act, 1956. The word “prostitution” as per the Act “means the sexual exploitation or abuse of persons for commercial purpose, and the expression “prostitute” shall be construed accordingly.” The Act does not criminalise voluntary sex work per se, but the acts that essentially facilitate it are criminalised, such as running a brothel, living on the earnings of prostitution, prostitution in or in the vicinity of public places, pimping, etc. The Act prohibits certain aspects of prostitution and has penal provisions for these. Therefore, the Act does not penalise a consenting adult sex worker but the person who facilitates the act of prostitution. The Act also provides protective measures for the victims of trafficking.
Conclusion
The directions issued underline the protection and rehabilitation of sex workers across India, and especially their reintegration into society with equal rights. The objective of the directions is towards the overall betterment of the sex workers. The Supreme Court has directed that the State Government and Union Territories should strictly comply with all the recommendations made by the court-appointed panel and agreed upon by the Centre. The court also directed the police and other law enforcement authorities to comply with the provisions of the Immoral Traffic (Prevention) Act, 1956. The recommendations made by the panel and the directions issued by the apex court will provide some respite to the plight of sex workers, depending on the effective implementation and execution of these guidelines and constant efforts to challenge the social stigma associated with sex work. The path to true equality and justice for sex workers is long, but these guidelines are a significant milestone in that journey.
References
- https://www.livelaw.in/pdf_upload/37388200752035996order19-may-2022-419214.pdf
- https://resmilitaris.net/uploads/paper/4f78db6d69b5762cab8a89b216ba06d3.pdf
- https://main.sci.gov.in/supremecourt/2007/37388/37388_2007_5_20_35996_Order_19-May-2022.pdf
- https://www.sangram.org/upload/resources/LL-Module-SANGRAM-Session-SC-Order-PPT-with-notes-Release-Ver-221123.pdf-1-106.pdf
- https://journals.sagepub.com/doi/10.1177/26318318231158678?icid=int.sj-abstract.similar-articles.6#bibr3-26318318231158678
- https://clpr.org.in/blog/implications-of-the-recent-supreme-court-order-on-sex-work/
- https://www.legallore.info/post/sex-work-and-the-law-in-india-sc-ruling-on-sex-work-as-profession-high-hopes-and-a-grim-reality#google_vignette
