In a significant order recognising sex work as a “profession”, the Supreme Court has directed that police should neither interfere nor take criminal action against adult and consenting sex workers.

What did the Supreme Court say?

• Sex Work is a profession whose practitioners are entitled to dignity and equal protection under law.
• Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
• It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution, the court observed.
• The order was passed after invoking special powers under Article 142 of Constitution.

A caution to the police

• 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.
• The Bench ordered that sex workers should not be “arrested or penalised or harassed or victimised” whenever there is a raid on any brothel.
• Since voluntary sex work is not illegal and only running the brothel is unlawful.
• Basic protection of human decency and dignity extends to sex workers and their children, the court noted.
• A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade, the court held.
• Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked.

Sexual crimes against sex workers

• The court ordered the police to not discriminate against sex workers who lodge a criminal complaint of offence committed against them is of a sexual nature.
• Sex workers can also be victims of sexual assault should be provided every facility including immediate medico-legal care.
• The court said media should take “utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations.

Sex work in India

• According to the Indian Penal Code (IPC), prostitution in its broader sense is not really illegal per se.
• But there are certain activities which constitute a major part of prostitution that are punishable under certain provisions of the act, which are:

1. Soliciting prostitution services in public places
2. Carrying out prostitution activities in hotels
3. Indulging in prostitution by arranging for a sex worker
4. Arrangement of a sexual act with a customer

Various issues faced by Sex Workers

• Stigma and Marginalization: This is experienced as the major factor that prevents women in sex work from accessing their rights.
• Denial of basic amenities: Due to this discrimination, women in sex work have been denied safety, proper healthcare, education and, most importantly, the right to practice the business of making money from sex.
• Risks of violence: People in sex work are not only at a higher risk for violence, but they are also less likely to get protection from the police—often the very perpetrators of this violence.
• Backwardness: Illiteracy, ignorance and fear of the medical establishment make it difficult for women to access healthcare.
• Health hazards: Current discourse on HIV/AIDS has served to further stigmatize sex workers by labeling them as “vectors” and “carriers” of the disease.

Protection against forceful sex work

• The Immoral Traffic (Prevention) Act, 1986 is an amendment of the original act.
• As per this act, prostitutes are to be arrested if they are found soliciting their services or seducing others.
• Furthermore, call girls are prohibited from making their phone numbers public.
• They can be punished for up to 6 months along with penalties if found doing so.

Constitutional protection

Article 23 of the Indian Constitution, amended in 2014, includes the following provisions:

1. Prohibition of human trafficking and forced labour.
2. Traffic in human beings and bears and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
3. Nothing in this article precludes the State from imposing compulsory service for public purposes, and the State shall not discriminate solely on the basis of religion, race, caste, or class, or any combination thereof, in imposing such service.

So, where does India stand?

• Prostitution is not illegal in our country, but soliciting and public prostitution are.
• Owning a brothel is also illegal, but because places like GB Road are already in place, these laws are rarely enforced.

What will change in India if the Centre accepts the court’s direction?

• Sex workers will be accorded equal legal protection.
• If a sex worker reports a criminal/sexual or other type of offence, the police will take it seriously and act in accordance with the law.
• If a brothel is raided, the sex workers involved will not be arrested, penalised, harassed, or victimised.
• Any sex worker who is a victim of sexual assault will be given all of the same services as a survivor of sexual assault, including immediate medical attention.
• Police will be required to treat all sex workers with dignity and not verbally or physically abuse them, subject them to violence, or coerce them into any sexual activity.

Where do other countries stand?

Some countries choose to outright ban the practice, while others have attempted to regulate prostitution and provide health and social benefits to sex workers.

Here are a few examples of countries where prostitution is legal:

• New Zealand: Prostitution has been legal since 2003. There are even licenced brothels operating under public health and employment laws, and they get all the social benefits.
• France: Prostitution is legal in France, though soliciting in public is still not allowed.
• Germany: Prostitution is legalised and there are proper state-run brothels. The workers are provided with health insurance, have to pay taxes, and they even receive social benefits like pensions.
• Greece: The sex workers get equal rights and have to go for health checkups as well.
• Canada: Prostitution in Canada is legal with strict regulations.

Conclusion

• While sex worker collectives have shown tremendous progress in asserting the rights of sex workers across India, they face an uphill battle as the country continues to foster a globalized economy.
• In the globalized world, sex work will become more institutionalized, functioning through escort services, and will no longer need traditional street brothels.
• Legislators needs to ensure all rights to the sex workers at par with citizens.

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