By Advocate Saju Jakob, Lily Thomas Jr
The Covid crisis impacted all aspects of human life, particularly the livelihoods of sex workers. Prostitution is perceived differently by society, especially when it comes to its legality. These people are often considered fallouts and looked down upon. For many, they are not morally acceptable and hence, are generally isolated from mainstream society. Due to this, the very essence of an individual, specifically their dignity, is severely undermined and compromised.
The pandemic deprived prostitutes and their kids of food and other daily necessities and they were eager to return to normalcy like everyone else. In light of these circumstances, the recent judgment in Budhadev Karmaskar vs The State of West Bengal & Ors, pronounced by the Supreme Court on May 19, 2022, is to be appreciated as it reiterates once again that voluntary sex workers cannot be deprived of their right to equality, right to work and right to a dignified life under Articles 14, 19 and 21. The apex court finally recognised voluntary sex work between two adults is not an offence and prohibits police officials from arresting these workers, but allows them to arrest the brothel owner. Furthermore, the Immoral Traffic (Prevention) Act, 1956 criminalises sexual exploitation, but not voluntary sex work.
In 2010, a criminal appeal was filed before the Supreme Court against a sentence given to an accused by the Calcutta High Court for committing a brutal murder in 1999 of a sex worker residing in the red light area. A factual matrix indicates that the accused repeatedly hit the deceased’s skull in a brutal manner, eventually killing her. On February 14, 2011, the Supreme Court categorically dismissed the appeal and upheld the conviction due to the horrific nature of the alleged offense, and thereafter changed it to a PIL suo motu to address issues of sex workers nationwide.
On July 15, 2011, a bench of Justice Markandey Katju and Justice Gyan Sudha Misra, explicitly declared that their goal was to create awareness in the public that sex workers were not bad girls, but were in this profession out of poverty. On February 14, 2011, the bench observed:
“Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity in view of Article 21 of the Constitution.”
In addition, the Supreme Court appointed a panel to recommend how to prevent trafficking and rehabilitate sex workers. According to the panel’s final report submitted in 2016, sex workers struggle to obtain proofs of identity such as ration cards or voter cards as they lack proof of residence. The lack of documents prevented them from opening bank accounts and other facilities offered by various agencies, including rehabilitation programmes. Also, district authorities failed to recognise the identities of sex workers and their children. It was recommended that the Immoral Traffic (Prevention) Act, 1956, be amended. The government informed the Court of the appointment of a ministerial committee to look into the suggestions made by the panel in 2020.
Presently, there is no legislation which categorically safeguards the rights of sex workers, and there is no mechanism to regulate their working conditions. However, the apex court has laid down some guidelines in this recent judgment in accordance with the recommendation of the panel, exercising its powers under Article 142 of Constitution, particularly for the rehabilitation of sex workers. These are as follows:
- Sex workers are entitled to equal protection of the law. There should not be any discrimination and criminal law must equally apply in all cases considering age and consent. Further, when it is consensual sex between the adults, police must abstain from intervening or taking any criminal action. Pertinently, whenever there is any complaint made by any sex worker, the police should take serious and immediate action against it.
- Medical aid should be provided to sex workers who are victims of sexual assault, without any delay as per Section 357C of the Code of Criminal Procedure, 1973.
- If a raid is conducted on a brothel, only the owners and not the sex workers should be arrested as sex work is voluntary.
- The guidelines further suggest that a survey of all the protective homes be conducted so that any woman detained or forced into prostitution may be released.
- Sex workers are also humiliated and disrespected by police officials. They don’t treat them with dignity and use abusive language with them just because they are sex workers. The apex court stipulates that police officials must treat them with respect so that they can equally enjoy all the basic human rights.
- Further, the Press Council of India must issue some guidelines for the media so that the identities of sex workers aren’t revealed at the time of arrests, raids or rescue operations. Section 354C makes voyeurism a criminal offense, and so the identity of sex workers should not be revealed during rescue operations with the client.
- It should be ensured that health measures, say for example, condom usage, shall not be construed as an offence nor seen as evidence of such commission.
- Additionally, the central and state governments must include sex workers or their representatives in all policy-making bodies so that their problems can be solved.
- Workshops should be conducted so that sex workers can enforce their rights through the National Legal Service, State Legal Services Authority and District Legal Service Authority.
- No child of a sex worker should be separated from its mother on account of her profession. Further, if a minor child is found in the brothel, he should not be assumed to have been kidnapped or trafficked. Any sex worker who claims that it is his/her child must be tested to confirm the claim.
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Apart from the above guidelines, the Supreme Court also ordered that sex workers be provided with Aadhaar cards based on proforma certificate to be issued by UIDAI. Furthermore, the apex court directed state governments to provide dry ration, access to ration card and voter ID Cards to sex workers.
On September 2, 2022, the Court observed that the centre had still not submitted the draft of the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2022 [Bill against trafficking]. The Court again instructed that either the Bill be shared within two weeks or else, the cabinet secretary would be called.
In upholding the spirit of individual rights, personal liberty and law of equality, the apex court has placed constitutional values on a high pedestal, as always. As outlined in KS Puttaswamy vs Union of India, the nine-judge bench unanimously upheld the right to privacy as a fundamental right under the Constitution and gave a broader view of the right to personal liberty protected by Article 21.
Budhadev Karmaskar vs State of West Bengal also indicates that voluntary sex work between consenting adults is private and is a fundamental right and hence, protected by the Constitution. Furthermore, in Navtej Singh Johar vs Union of India case, the Supreme Court unanimously decriminalised Section 377 of the IPC. The combined reading of Articles 14, 19 and 21, along with all other judgments, proves that voluntary sex work between consenting adults is on an equal footing with any other job/work. Every Indian citizen has the right to practice any profession, engage in any occupation, trade or business, subject to reasonable restrictions, under Article 19(g) of the Constitution.
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There is no denying that it is difficult to distinguish prostitution from voluntary sexual work. As a general rule, prostitution is understood as something that is done for financial gain. As long as it is undertaken voluntarily, for the benefit of the person doing the work, without commercial assistance from a middleman, broker, or third party, this activity is legal and lawful.
Other forms of prostitution, including running brothels or using commission agents, are criminalised, leading to lower human trafficking, kidnapping and abduction rates. It is permissible under Article 19 to restrict such sexual work in a reasonable manner for the purposes of social control/societal norms. According to Section 2(f) of the Immoral Traffic (Prevention) Act 1956, “prostitution” is defined as sexual exploitation or abuse of persons for commercial gain.
Consequently, the Supreme Court has elevated their fundamental rights and freedom to high echelons by this judgment, making society at large aware that they will be treated equally as all other professionals. Police and government officials were warned not to compromise their integrity and dignity at any cost.
In addition, the Supreme Court ordered the government to submit the draft legislation based on the panel’s recommendations. Central governments should establish an effective mechanism that safeguards the rights of sex workers and their families based on the panel’s recommendations.
—The writer is an advocate practising before the Supreme Court and the article is co-authored with Advocate Tanisha Adwani