LEGALITY OF SEX WORK?

Abstract:

This research paper explains in detail the judgement given by honorable Supreme Court regarding legalizing sex workers and their work as profession. Sex workers have been not recognized by the law since long though many a times there has been rift between the government, court, and sex workers regarding the same.

Though in a recent judgement passed by the honorable Supreme Court of India the sex workers have been categorized as profession Article 19(1)(g) of the Indian constitution. As this Article under our constitution gives right and freedom to the citizens of the country to profess any profession. As they were not included under this Article it was considered to be in contravention with Article 21 of the Indian constitution as it ensures personal liberty to all the citizens in any scenario and also ensures right to live with dignity which is one of the essential for living life more than mere animal existence. As the judgement was held in favor of the sex workers but thereafter to ensure that no one is trafficked for the same the brothels were not given legal as it is already considered as illegal under Indian constitution.


Introduction:

Prostitution was illegal in India as the people were of mindset that such type of profession carries social stigma therefore everyone involved in carrying out such profession were not allowed to live in mainstream society.

But, in a recent judgement passed by the court it has got legal recognition which has drastically changed everything revolving around it. As the judiciary wants to establish a just and equitable approach in the society therefore it wants to end all the social stigma that is there as a barrier in the society. prostitution was considered to be illegal as per Section 372 of the Indian Penal Code which would be punished with imprisonment upto six months and fine of rupees five hundred on first conviction and if in case of second or further imprisonment which may extend upto one year and fine of rupees five hundred. According to a survey people involved in sex work are around 3 million which cannot be overseen as they make quite a good amount, therefore it became important for the courts to overcome the taboo and discuss about the life of these people. As to stop the marginalization of sex workers from the society as when they take up this profession “voluntarily”.


Legal status:


In many judgements various courts have shown support and held judgement in the favor of the sex workers as the courts said that voluntary consent to get indulge in sexual activity is not considered illegal under any law example: immoral trafficking (prevention) act 1956 or prostitution definition under section 372 of the Indian Penal Code. A panel was appointed by the Supreme court which included a senior advocate of supreme court, and a sex worker’s organization and its affiliated organizations to discuss upon the legal status and all necessary document for identity proof. Though the court after appointing this panel many a times asked the government about its stake and about appointing a committee to make laws regarding it to which the government reply since 2016 has been that a draft is being prepared for the same.

As due to lack of identity proof they are unable to get all the necessary documents which includes Aadhaar card, ration card, bank account etc. which is grave injustice being done against them as they have all the right to get access to everything as an ordinary citizen. As these are all necessary to access any government scheme. As depriving them from all these rights are in violation with the constitutional right. Therefore, the court by passing the judgement in their favor has made a step forward in availing all the facilities to them. the court has recognized and given them legal status. According to Article 142 the supreme court has discretionary power to make an order to the states and union territory to make strict compliance with its judgement and has also held that this judgement will be followed as precedent until the central government makes any law in further to the judgement.


Dignity and decency:

According to Article 21 of the constitution gives the right to enjoy and live life according to their desire.

The term personal liberty ambit is very vast as it includes everything that makes human life more than mere animal existence which was held by the Supreme Court in Kharak Singh’s case[1] which was a landmark case. Personal liberty also includes right to live with dignity as it is very important for every human which was held by the court in Maneka Gandhi v. Union of India[2] Therefore everyone is entitled for the same dignity under the Indian Constitution. the court has recognized the sex workers to be included in the definition of profession under Article 19(1)(g) of the constitution under the held right to freedom as everyone has right to choose their profession. If the sex worker is not provided with the legal status, right and dignity their children will also get deprived of the aforesaid therefore to ensure that not just sex workers, but their children’s too are provided and treated as equals it had become topic of gross importance as many people were attached or depend on such recognition.


Judgement:

The Supreme Court held important things in the judgement that are as follows:


● Gave legal recognition to the sex workers which gave a legal status to their profession under Article 19(1)(g) of the Indian constitution ensuring that access to legal identity which was a real crisis for them.

● By giving the judgement the court ensured that they will be treated with dignity as it is included in the ambit of personal liberty under Article 21 and all the rights related to it such as providing with all the necessary documents for legal identity, legal right like if they register a complaint with will be treated with utmost seriousness and there consent is needed if they are getting into this profession with their own consent and by trafficking or force.

● They are to be considered as equals and are going to be protected under Article 14, 15 and 21. As for coming in the ambit of Article 21 the right shall pass or be concerned with the golden triangle which includes Article 14, 19 and 21 and according to the judgement it includes all the three. Therefore, equal protection and doctrine of equity is being followed in this case.

● The children of the sex workers are not to be separated from their mother merely because of the reason that they are involved in sex work as they have all the right to stay with their mother therefore, no police are allowed to do so.

● Sex workers have been made legalized and not sex place i.e., brothels are still not legal.

● If in case police raid such place where sex work is taking place, they are not supposed to arrest the one who are above the majority age and are involved in it voluntarily with their consent.

● They are supposed to register the complaint and take it seriously.

● This step is in awakening of the national human right as all humans are supposed to be treated with equality.


Position in other countries:

Austria: prostitution is legal in Austria and are regulated by the government as the sex workers there are supposed to get registered and pay tax as any other citizen of the country. They also undergo regular health checkups to avoid the spread of disease.

Bangladesh: prostitution is legal there though male prostitution are considered as illegal.

Belgium: prostitution and brothel both are legal and are regulated by the state here.

Denmark: prostitution has legal status, and the government too helps the worker in case of any discomfort.

India: it has recently been legalized.


Conclusion:

The judgement passed by the government in favor of the sex workers by legalizing it which is a landmark judgement for all the sex workers involved in this profession. As now they will have all the rights as any other ordinary citizen.

Legal status will now help them to get access to the facilities provided by the government as now all the necessary documents that are required for availing the facilities. The Supreme Court will be treating this judgement as precedent until and unless the central government passes law in this regard. All the national, states and district legal service commission are asked to do campaigns for raising the awareness regarding this judgement and about their rights as due to lack of the aforesaid they are not treated adequately. This judgement will help in removing the social stigma that persist in the society in regard with sex workers. As they are just like any other human therefore, they and their children shall be provided with equal opportunities just like others. Treating their work as profession is a drastic step as this to try and stop all the persisting discrimination against them

[1] 1963 AIR 1295, 1964 SCR (1) 332 [2] AIR 1978 SC 597; (1978) 1 SCC 248



This article is written by Shikha Singh of Amity Law School, Noida.

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