“All men feel hungry for sex. Prostitutes prevent women from good families from getting raped. If prostitutes were not there, women would not be able to walk on the road. Unmarried young men would attack any woman on the road. In fact in my opinion, prostitutes are social workers, next only to mothers and should be treated with respect.” —Khairati Ram Bhola
PREFATORY REMARKS
After years of being ostracised, humiliated, discriminated and exploited sex workers finally get the legal protection, something they have been fighting for centuries. Recently, in a socially and historically pathbreaking order the Supreme Court of India by invoking its power under Article 142 has recognised sex work as ‘profession’ and observed that its practitioners are entitled to have equal protection under law and dignity under Article 21 of the Constitution.
What Court Ruled?
Court issued the detailed directions ranged from prohibiting police actions against consenting sex workers, police and medico-legal protection being victim of sexual assault, holding media accountable for voyeurism (S.354C) on revealing identity of sex workers to directing UIDAI to issue Aadhar Card for them without insisting on address proof. This directions/guideline would remain in effective till government comes up with legislation.
Towards a better future: Treating all with Dignity
Prostitution has long been considered as some kind of dark mark on the society. Till date, there is a lot of unawareness and disinformation propagated around the area, the major one being that prostitution is illegal in India. However, pimping, owning and running a brothel is illegal.
In India, the legal position pertaining to prostitution and sex workers is entangled in convoluted conundrum. A progressive approach has been adopted by court along with clearing the air pertaining to position of sex work as profession in India. Prior to that, Apex Court in 2011 had constituted a special panel headed by Mr. Pradeep Ghosh, for making recommendation on three core issues and one of them was “the condition conducive for sex workers to live with dignity”. While issuing guidelines, court considered the recommendations made by the panel and commented on laxity of legislature to act upon it despite the fact that recommendations were made in 2016. Thus, court utilised its power under Article 142 and directed all State Governments/UTs to strictly comply with recommendations made by panel.
The Immoral Traffic (Prevention) Act, 1956 is lex Specilis that partially dealt with position of prostitution in India but from lens of human trafficking and not from victim centric aspect for practitioners of sex workers. Also, the provisions of the Penal Code (i.e., S.366A, S.370A S.372, S.373) criminalises some activities related to prostitution but prostitution is not illegal in broad sense.
The existing view of society discriminates sex worker and ostracised them from society, thus contravening fundamental human rights, gender justice, equality, and dignity of women. It clearly violates Articles 14, 15 and 21 of Indian Constitution and is against international human rights law. In National Legal Services Authority v. Union of India, the Supreme Court held that right to live with dignity under Article 21 enshrined the right to not be perceived as unequal or inferior to other individuals in society. In Joseph Shine v. UOI, the Supreme Court observed that a law that treats women differently based on gender stereotypes causes a direct affront to women’s dignity, violating Articles 14 and 21. Also, any law that reinforces discriminatory stereotypes against a class of person is arbitrary and violative of Articles 14 and 15 of the Indian Constitution. Recently, Bombay High Court observed that being adults everyone has right to choose their own vocation and held that prostitution is not criminal offence.
Additionally, India is a party to the CEDAW. The discriminatory and oppressive treatment to sex worker violates India’s obligations under Art.5(a) and 16(1)(a) of the CEDAW. Further, India is signatory to numerous human rights treaties. But, the treatment received by sex workers from the society included ‘abuse and brutality’ by police personnel’s during raid is clear violation of human rights vis-à-vis its commitment under such treaties.
Should we celebrate this decision of Apex Court: Let’s sum it up
Yes, we should, because it is a reform towards women empowerment, to protect human rights, to safeguard the right to equality and eradicate orthodoxia prejudiced mindset. However, while the reform on paper is an important step, it is equally important to ensure that it will be implemented in practice. Recognising sex work as work enhances the legal protection and ability of sex workers to exercise other fundamental rights, including access to justice and health care. Legal acknowledgement of sex workers and their profession enhances their safety, respect, and equality. This is an essential step towards de-stigmatizing sex work.
The existing view of society discriminates sex worker and ostracised them from society, thus contravening fundamental human rights, gender justice, equality, and dignity of women. It clearly violates Articles 14, 15 and 21 of Indian Constitution and is against international human rights law. In National Legal Services Authority v. Union of India, the Supreme Court held that right to live with dignity under Article 21 .