SC recognises the practise of sex work
Sex work is legal in India. The sex workers are entitled to dignity and equal protection under the law. This is what an order of a three Judge Bench of the Supreme Court (SC), delivered on 19th May 2022, declares in Budhadev Karmaskar v State of West Bengal & Others.
In fact, it is a landmark judgement. It brings in great consolation for the much-exploited sex workers.
Sex work is not illegal in India
The SC says what is illegal in India is not sex work. What the Immoral Traffic (Prevention) Act, (ITPA) penalises are acts such as running a brothel, soliciting in a public place, living off the earnings of a sex worker, and living with or habitually being in the company of sex worker.
SC does not recognise sex work as a profession
The SC does not recognise sex work as a profession as the media widely reported. What the SC actually says is that notwithstanding the profession, every individual has a right to dignified life under the Indian Constitution and the constitutional protection that is given to all individual shall be kept in mind by the authorities while enforcing immoral traffic prevention law.
In fact, what it puts forth is that the sex workers, who are despised and stigmatised by society, must be treated with full respect for their dignity and humanity, and not to abuse them verbally or physically, or to coerce them into sex work.
SC says sex workers deserve dignity
The court directed that the police should neither interfere with nor take criminal action against adult and consenting sex workers. Every individual in this country, irrespective of his profession, has a right to dignified life under Article 21 of the Constitution.
Sex workers like any other group are entitled to equal protection of law. Criminal law must apply equally in all cases, on the basis of age and consent. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action against them, just because they are engaged in sex work which is not illegal in India, as of now.
SC reiterates what it had ruled in 2011
The SC reiterated what it had ruled in Budhadev Karmaskar (2011), that sex workers are also entitled to a life of dignity. In 2011, SC had set up a panel to look into the issues of prevention of trafficking, rehabilitation, and conditions conducive for sex workers who wish to continue sex work.
The government, having some reservation on four out of the ten recommendations, has not responded to the panel recommendation so far, other than publishing a bill titled, “The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill” in the year 2016, 2918 & 2021, with no further action on it.
That is why the court issued a direction to implement the six recommendations about which the central government has no reservation, as an interim measure, till a new legislation on this matter is brought in.
Supreme Court’s directions to the states
The SC’s interim directions issued to the Union and the States, till the legislation on this matter comes into force, are as follows:
Sex worker should not be arrested or penalised
Sex workers should not be arrested or penalised or harassed or victimised whenever there is a raid on any brothel, as voluntary sex work is not illegal and only running the brothel is unlawful.
Police must take action on crimes to sex workers
The police must not discriminate against sex workers who lodge a criminal complaint, especially if the offence committed against them is of a sexual nature. Sex workers who are victims of sexual assault should be provided every facility, including immediate medico-legal care.
Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973 (CrPC) read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
Sensitise Police and other enforcement agencies
The attitude of the police to sex workers, as noticed by the SC, is often brutal and violent. The sex workers are a class whose rights are not recognised.
The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens.
Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
Protect the child of a sex worker
A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade. Basic protection of human decency and dignity extends to sex workers and their children. If a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked.
In case, the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.
Media not to reveal identity of sex worker
The media should take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. If media publish the pictures of sex workers with their clients, the police should charge against them the offence of voyeurism, under Section 354C of the Indian Penal Code (IPC).
The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.
Health measures should not be construed as evidence
Measures that sex workers employ for their health and safety, such as use of condom, must not be used as evidence of commission of an offence.
Workshops to sensitise sex workers
The Union and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law.
Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.
Involve sex workers in law making
The Union and the State governments must involve sex workers or their representatives in reforming the laws concerning sex work.
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