Sex workers are people who are involved in sex work to lead a life. Most of them are forced into this business, and very few choose to be sex workers only to run their families. Sex workers mostly live in red-light areas of the cities. Though sex work has been around for a very long time in society, it has never been considered a part of society. Sex working is the oldest profession in the world. One goes to have sex with a sex worker only to fulfil their desire and the same person later hesitate to talk about it. Because in our society even the word “sex” is taboo. Sex workers are stereotyped and stigmatized. They are not given proper respect.
WAS SEX WORK ILLEGAL IN INDIA?
In the last few days, there have been several articles written and many news channels are claiming that the Supreme Court has now made sex work legal and recognized it as a profession. But the question is, did the apex court make sex work legal? The short answer to this is “no,” because sex work was not illegal in India. To be more specific, the Immoral Traffic [Prevention] Act of 1956 addresses sex work in India. It does not make volunteer sex work illegal, but it makes certain activities like owning a brothel or inducing someone from prostitution, forcing them into sex work, or pimping them out illegal.
WHEN DID THIS ISSUE START?
In 1999, a sex worker was murdered in Calcutta. The woman was brutally beaten up by a man after she refused to have sex with him. The sex worker lost her life. Her case Budhadev Karmasker v. The State of West Bengal has now come into the limelight in the Supreme Court while issuing guidelines for the rehabilitation of sex workers” across India. The Supreme Court directed “central and state governments,” through social welfare boards, to prepare schemes for rehabilitation all over the country for physically and sexually abused prostitutes. The apex court also said sex workers “have the right to live with dignity under Article 21 of the Indian constitution.”
In July 2011, the Supreme Court-appointed a five-member panel to advise the court on three issues:
- prevention of trafficking.
- Rehabilitation of sex workers who want to quit sex work.
- conditions that promote a decent life for sex workers according to of the Indian Constitution.
- The panel established by the Supreme Court submitted its final draft on 14.09.2016. The committee noted that sex workers do not have legal status in India. It has been observed that the lack of residence proof makes it very hard to obtain any identification cards such as Aadhar cards, Ration cards, or even voter IDs.The panel also said that all citizens of India enjoy “basic human and fundamental rights,” but the local governments do not give those basic rights to the sex workers and even their children.”
The panel concluded that sex workers do not have access to programs designed for their rehabilitation. They also cannot take advantage of the state-provided funds because they cannot open a bank account due to a lack of supporting documents. It has been more than 5 years since the panel gave its recommendation, but till today there are no laws brought into parliament. The central government responded several times that it was working on laws based on the panel’s recommendations, but till today there have been no drafts by the government on this matter. So, the Supreme Court exercised its power under of the Constitution of India and has issued a few directions on the “rehabilitation” of sex workers.
The bench, which consisted of justices L. Nageswara Rao, B. R. Gavai, and A. S. Bopanna, made it mandatory for all states and union territories to “implement” and “act in strict compliance” with a few recommendations made by the panel appointed in 2011 for the sex workers. When a sex worker is forced to have sex with someone without their consent, They should be treated the same way any other sexual assault victim is treated. They should be given immediate medical assistance under of the code of criminal procedure. State governments should examine the “Protective Homes” established under the “Immoral Traffic Prevention Act, 1956”. This should be done to make sure that no adult women are detained against their will.
The police often behave violently when it comes to sex workers. Their constitutional rights are violated by the police. So, the police and other law-enforcement agencies should treat all sex workers with dignity and respect, and should not abuse them or be violent towards them. The Press Council of India should issue guidelines to all media houses and order them to never disclose the identities of sex workers during arrests, raids, and even while rescuing them. They should never telecast or publish their pictures.
Central and state governments, through national, state, and district legal services authorities should conduct various workshops where they should educate sex workers about their rights and make them aware of what is prohibited under the law. This should be done to prevent any harassment by human traffickers or police. The central government has accepted a few recommendations by the apex court in the country. But it has objections to a few recommendations.
- Equal legal protection for sex workers is a legitimate obligation. Based on “age” and “consent,” the law should be applied equally in all cases. If a sex worker has reached the legal age and is involved in sex with her consent, the police have no right to interfere in her business. Sex workers are allegedly more unfairly recognized by police than anyone else. If a sex worker reports a criminal, sexual, or another form of crime, police must look into the matter seriously.
- When a brothel is raided, the sex workers involved should not be imprisoned, fined, harassed, or victimized, as voluntary sex is not illegal, and only operating the brothel is illegal.
- The planning, development, and implementation of, any legislative changes or reforms related to sex workers’ policies must include the representatives of sex workers.
- As already mentioned in the “6th Interim Report” of March 22, 2012, a child of a sex worker should not be taken away from her mother just because the child’s mother is a sex worker. DNA tests may be performed to determine the truth if a woman claims the child as her own.
For the time being, the bench has not passed any directions concerning these four recommendations. It has ordered the central government to file a response to all the recommendations. The court will decide the matter after its summer vacation. The one thing that we must focus on is when will sex workers have to lead an undignified life. How long will it take to draft laws for their welfare? Sex workers are humans, and they deserve basic human rights, and their children deserve proper education so that they are financially stable in the future.
Author(s) Name: Hamsa Wadigera (Ramaiah College of Law, Bengaluru)
https://legislative.gov.in/sites/default/files/A1956-104.pdf> The Immoral Traffic [prevention] act, 1956
https://www.livelaw.in/top-stories/criminal-action-against-voluntary-sex-work-adults-supreme-court-200084> last accessed on 04/06/2022