The Supreme Court of India recently upheld sex work as a profession and issued a slew of directions to uphold the dignity of sex workers. This order was not only historic but also necessary because India is no stranger to sex work. It is a historically prevalent profession, albeit under unsafe conditions. Over the course of the years, many have debated and disputed whether this profession should be legally sanctified or not. To begin with, it must be realised that prostitution itself is not ‘illegal’ in India. The acts that facilitate it are, under the Immoral Traffic (Prevention) Act, 1956 [ITPA]. These acts may include running a brothel house, living on the earnings of prostitution of any other person, pimping, carrying out sex work in or in the vicinity of public places, etc.
Questions of morality, autonomy over one’s body, dignity, decency, unemployment, poverty, and desperation have been raised. One side believes that sex work should be given legal sanctity so there can be a code of conduct for safe working conditions, fair payment, and recognition of dignity on grounds of its inevitability. The other side believes that the government must take a strong stand against this type of work as it shames the dignity, deplores the mental state and resorts a person to use their body as a means of commercial gain in dangerous conditions where diseases like STIs, cervical cancer, AIDS are rampant. People engaged in such work are also susceptible to physical, emotional, and mental trauma that not only affects them but also their succeeding generations. They further refer to it as legalised abuse. Religious and cultural morality colour these arguments too. Both sides hold some merit, but first, we must look at what the Indian courts have said on it.
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What do courts say
It can be seen that the Indian courts have made some favourable judgments towards sex workers in the past. In 2011, Budhadev Karmaskar v State of West Bengal led the Supreme Court to hold that sex workers have a right to dignity under Article 21 of the Constitution, which ensures the right to life and livelihood. In 2019, the Calcutta High Court stated that under ITPA, no sex worker exploited for commercial sex can be tried as an accused unless there is substantial evidence that she was a ‘co-conspirator’ in the crime. In September 2020, the Bombay High Court ordered the immediate release of three women sex workers jailed at a state correctional institution, stating that sex work was not a criminal offence under the law and that an adult woman had the right to choose her profession.
Now, in 2022, a three-judge bench of the Supreme Court issued a historic order that recognised sex work as a profession and said that sex workers are entitled to dignity and equal protection under the law. The apex court elaborated that ‘voluntary’ sex work was not illegal. It issued commendable guidelines along the lines that when a sex worker makes a complaint of an offence, the police must take it seriously and act in accordance with law; that when a brothel is raided, the sex workers concerned should not be arrested; that no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade; that the police should treat all sex workers with dignity and should not abuse them; and more other positive directions.
Irrespective of the debate around the topic, the orders issued are revolutionary and will herald change but the real challenge lies in the execution and implementation of these directions. Prostitution or sex work has always been stigmatised and the persons who engage in such occupations have had to bear the brunt of the consequences that follow from such stigma and face discrimination, besides the emotional, mental, sexual, or physical trauma they may face. It is essential that the Centre pay heed to the directions issued by the apex court and accept them so that sex-workers may be afforded the basic dignities enjoyed by all others. These directions take one step forward to help de-stigmatize the profession and if accepted, and implemented, will help improve the plight of a sex-worker in India. By keeping in mind that one of oldest professions in the world is unlikely to be curbed and by realising that practising it is often one’s desperate last resort, this legal backing can help further the safety and rights of the sex workers and must not be ignored.
The author is a student at Government Law College, Mumbai. Views are personal.