Sex work is entrenched in every society, and this is an indigestible truth. The existing fissures in the society continue to widen and sex workers are one of the marginalized, vulnerable, and stigmatized sections pushed further over the edge.
They have historically faced social and economic marginalization and continue to do so. However, now, the world has finally woken up to the need for greater social justice. People have started to realize that sex workers’ rights are “human rights.” There is global recognition for the protection of the rights of sex workers. This has been reflected in the Indian legal landscape through the historic ruling made by the Supreme Court of India recognizing sex work as a profession. This path-breaking SC order on the rights of sex workers is a major step towards acknowledging and responding to their long battle for dignity, equality, and identity. However, the story does not end here. Whether the order will bring about social change and reforms facilitating the goal of destigmatization of sex work in the Indian society, is still uncertain. The challenge of enforcement, questionable impact, and diverse ideologies are the reasons why laws regarding sex work remain controversial.
In India, voluntary sex work has not been illegal but the social stance on the profession has been deleterious not to mention the counterproductive laws. Recognizing this the Supreme Court has been persistently addressing the causes leading to the deprivation of sex workers’ constitutional rights. Not long ago, in the order dated May 19, 2022, a three-judge bench headed by Justice L. Nageswara Rao reviewed the recommendations made by a panel in July 2011, post the Budhadev Karmaskar v. The State of West Bengal (2011) ruling, focusing on three issues: conditions that would allow consenting adults, voluntarily engaged in sex work to live with dignity as guaranteed under Article 21 of the Indian Constitution, prevention of trafficking of victims and minors, and rehabilitation of sex workers who do not wish to engage in sex work.
Due to the absence of a central law on sex work, after considering the Centre’s reservations about the suggestions, the Apex court invoked its discretionary powers under Article 142 of the Indian Constitution and held that the states and union territories will have to comply with its directives until a law on the subject matter is passed.
The bench observed that, “sex work is a profession” and that “Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.” Thereby issuing mandates to police officers and other law enforcement agencies limiting intrusions into and prosecution of those employed in voluntary sex work.
The raft of orders particularly stated that the agencies in charge of the Immoral Traffic (Prevention) Act, 1956 must bear in mind that all the citizens of India are guaranteed constitutional protection. The order came at the right time, providing an interim solution to the constitutional issues pertaining to the legal protection of sex workers and their capacity to exercise their rights, most importantly their access to justice and health care which is fundamental to every human being and the government had failed to address.
The SC guidelines limit unwarranted police action against adult sex workers and their clients engaged in consensual sex work during enforcement of legislations regarding human trafficking and certain activities criminalized under Sections 372 and 373 of the Indian Penal Code, 1860 (IPC)
which penalizes the buying, selling and importing of a minor for prostitution; Sections 366A, 366B, 370A of the IPC punish the offences of procuration of a minor girl, importation of a girl from a foreign country and a trafficked person respectively all made to engage in illicit intercourse and exploited sexually.
The Indian Constitution does not criminalize sex work instead there are certain limitations restricting some actions. The Prevention of Immoral Trafficking Act (PITA) (the 1986 amendment of the legislation passed in 1956) prescribes punishments to those keeping or renting out property for a brothel, to those earning from prostitution, pimping, and solicitation of a person for prostitution.
Articles 23(1) and 23(2) of the Indian Constitution guarantee the right against exploitation, prohibiting human trafficking and forced labour while Article 21 guarantees protection of life and personal liberty. These rights and legislations together with the SC guidelines would safeguard sex workers against violence from clients, brothel keepers, and traffickers.
According to Section 7 of the Act, sex work is illegal if it is not carried out 200 meters away from public places with social institutions. This beats the purpose of decriminalizing sex work as a profession as it worsens the stigma, discrimination, and isolation faced by sex workers. In a country with over 800,000 sex workers, this clause pushes the negative argument that sex work is a field of secrecy, is demeaning and dignity does not exist where sex is exchanged for money and is a means of livelihood.
The aversion toward sex work in the Indian society brings about and catalyzes major challenges for sex workers. This slows down any efforts to raise awareness against the rampant exploitation of sex workers due to the backward societal outlook that sex work is immoral and hence a crime. The sexual violence and assaults endured by sex workers are always overlooked. To tackle this problem the court has directed the police and the law enforcement agencies to be briefed about the rights of sex workers and the government has been instructed to engage the support of the Legal Services Authorities to educate sex workers on their rights and duties, the rights, and obligations of the police and those administering and enforcing the law.
The Press Council of India was advised to provide policies to prevent the disclosure of identities of sex workers whether as offenders or victims. It is a struggle for sex workers to acquire proofs of identity like voter IDs and ration cards due to their lack of legal status. They must be registered with the National Aids Control Organization (NACO) in the absence of proof of residence to apply for the issuance of Aadhaar cards. The National Human Rights Commission (NHRC) acknowledged sex workers as informal workers in 2020. The Ministry of Women and Child Development in 2007 initiated the Ujjawala scheme with the objective of rescuing, preventing, rehabilitating, reintegrating, and repatriating victims trafficked for sexual exploitation. Yet, their lack of identity has impeded them from gaining access to such schemes.
It must be understood that ‘law in books’ and ‘law in action’ often digress. The SC ruling has paved a way in the right direction bringing out to the public eye the plight of sex workers and their stand in a country that has equitable justice and liberty enshrined in its constitution. Nonetheless, sex workers do not exist within the ambit of securing these rights and have been fundamentally kept out from seeking equal opportunities like any other citizen of India. The fact that sex workers and their children persist as one of the brutally socially excluded populations, vulnerable to abuse and exploitation must be acknowledged and it is imperative to comprehend the impact of laws on sex work and its weak execution on the ground to conceive an effective legal and regulatory framework that could engender a positive change in this harsh reality.
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This article is written by S.P.Varsha of IFIM Law School.