Ensuring Human Rights of Sex Workers

Recently, the hon’ble Supreme Court (SC), while conducting proceedings in the matter of Criminal Appeal 135/2010, passed certain directives to the government and governmental authorities under the Article 142 of the Constitution of India in the matter of working conditions and human rights of the sex workers. ¹ The matter was widely reported in the press and drew a lot of public attention. ² This article is focussed on examining the matter of status of sex work as a profession and the issues arising out of this directives. The matter of prostitution in India is covered by the Immoral Traffic (Prevention) Act, 1956, and the Act which was enacted in 1956 to prevent Trafficking in Women and Girls. As per the 64th Law Commission of India report, the Act operates in a limited sphere and does not purport to penalize prostitution in general but deal with commercial or open prostitution. ³

The Immoral Traffic (Prevention) Act 1956

After India signed the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others in 1950 and the Indian Parliament ratified it in 1953, ⁴ it became necessary to enact a legislation on the matter. Consequently, The Suppression of Immoral Traffic in Woman and Girls Act (SITA) was passed and enacted in 1956. ⁵ Amendments in the Act took place in 1978 and 1986. After the 1986 amendments, the nomenclature of the Act was changed to The Immoral Traffic (Prevention) Act (ITPA). Contrary to the popular belief, the Act does not criminalize the act of prostitution in general. It is only the aspects of promoting the trafficking in women and girls, like the matter of procuring, alluring, enticing, etc, them into prostitution, establishing, maintaining or being associated in anyway with a brothel and living on the earning of prostitution, that are covered by the Act and are made criminal offence. In the initial Act SITA (1956), the act of soliciting clients by the sex workers (prostitutes) was punishable. But that particular section was deleted by the Amendment Act of 1986. There is not a single section in the Act which criminalizes the act of sex work for money. The 64th report of the Law Commission of India headed by Justice PB Gajendragadkar emphasized that it is a common misconception that the Act is intended to prohibit prostitution. But it is not the exact position. The Act deals with prohibition only in some of its aspects. The Act applies if a person promotes prostitution by another person, and derives a monetary benefit therefrom. The Act also applies if a person exploits women and girls and makes them lead a life of vice. The Act also applies if a person solicits customers for prostitution in the specific circumstances. The Act criminalizes all these activities and has penal provisions for these. The Act also prohibits prostitution in public places, but not if it is done in a private place. ³ It is also worth mentioning that the Act does recognize men or transgenders who have taken up the profession of prostitution. ⁶

Recent Directives of the Supreme Court Under Article 142

The Criminal Appeal 135/2010 was filed before the apex Court by one Budhadev Karmaskar, who was convicted by the trial court for murdering a sex worker and was sentenced under section 302 IPC with life imprisonment. The conviction order was later upheld by the High Court, after which the appeal was filed by the convict Budhadev Karmaskar before the Apex Court. While dismissing the appeal and upholding the conviction, the SC bench suo moto converted the criminal appeal into a PIL and issued appropriate directions to the Central and State Government. The hon’ble Court expressed the views that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. ⁷ In the proceedings that followed in the case, a Panel was constituted on July 19, 2011, to give recommendations regarding prevention of trafficking, rehabilitation of sex workers, and making conditions conducive for sex workers to live with dignity so as to enable them to enjoy the fundamental rights guaranteed under Article 21 of the Constitution. The panel submitted its recommendation in 2016. The recommendations were passed on to the Government of India for necessary action. Subsequently, the Government of India prepared a draft legislation incorporating the recommendations. But due to various reasons, the draft bill could not take a final shape. Therefore, the hon’ble Court exercised power bestowed under article 142 and issued certain directives to the State Governments/ UT administrations, which are to hold field till a legislation on the matter is made by the Union of India. ¹ The directives were issued on the basis of some of the recommendations of the Panel. Other recommendations on which the Government has certain reservations were put on hold. The directives which were issued on May 19, 2022, related only rehabilitation measures in respect of the sex workers and other related issues. State Governments/UT administration were also directed to strictly comply with recommendations, which are summarized as follows:

Sex workers subjected to sexual assault must be provided all such facilities which are normally provided to any victim of sexual assault, including medical assistance.

To do a survey of all protection homes established under the Immoral Traffic (Prevention) Act, 1956 (ITPA), so as the cases of adult women detained there against their will may be released in a time-bound manner.

Police should treat all sex workers with dignity and should not abuse them, either physically or verbally.

The Press Council of India was directed to issue guidelines for the media not to reveal identities of sex workers during arrest, raid, or rescue operations and not to telecast any photos, videos, or interviews with them. It was also instructed that Section 354C of the IPS concerned with voyeurism would strictly apply against them.

Health and safety measures employed by sex workers should not be treated as evidence for the commission of offence.

Legal services authorities to carry out workshop for educating sex workers about their rights in relation to legality of their works as also how to access judicial systems to enforce their rights as well as the rights and obligations of Police.

UIADI was also directed to issue Aadhar Card on the basis of a pro forma certificate issued by a gazetted officer at National AIDS Control Organization or the Project Director of State AIDS Control Society in lieu of proof of residence. Confidentiality is to be maintained at all levels.

It is clear after perusal of the Court Order that the legal status of the sex work and trafficking for prostitution as described in the ITPA 1956 has not been altered in any way. The directives have been issued only to ensure the right to live with dignity and also to get equal protection of Law for the sex workers as guaranteed under the Indian Constitution and also for ensuring measures for rehabilitation of the sex workers.

Affairs of Prostitution

Prostitution is a necessary social evil which is stated to be the World’s oldest profession. In India too, prostitution is understood to exist since ancient times. We find mention of the prostitution in Rigveda too. ⁸ In ancient India, prostitutes commanded certain social status and respect and were known as Ganikas, Nagarwadhu, Nartaki, Devdasis, etc. In medieval India, the Tawaif served the nobility in dance, music, and likes. ⁶ Britishers established red light areas in many cities for the purpose of prostitution, mainly to serve the need of British Soldiers. Though the number of prostitutes in the red-light areas has significantly dwindled due to various reasons in independent India, including repeated crackdown, the prostitution spread into other areas and in various other forms like, street, escort services, direct client contact, hotels, etc. There are some countries that have legalized prostitution for purpose of proper regulation, like Austria, New Zealand, Canada, Belgium, Brazil, some states of Australia, while many of the countries like many of the African Countries have outrightly banned prostitution ⁶ In some of the countries, like Saudi Arabia, prostitution carries severe punishment. In India, as described above, prostitution is prohibited in some of its aspect only.

Human Rights of Sex Workers

Prostitutes or sex workers are subjected to much social discrimination, bear the brunt of social stigma, and face obstacles and impediments in day-to-day life. As a result, they or even their children, are not able to live a life with decency and dignity. The hon’ble Supreme Court, in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, extended the meaning of the right to life beyond the protection of limb or faculty to include the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing, and shelter and also the right to carry on such functions and activities as constitute the bare minimum expression. ⁹ Regardless of the fact whether their profession of sex work is socially recognized or not, or even it is legal or not, they are entitled to enjoy the right to live with decency and dignity as guaranteed under Article 21 of the Indian Constitution. The directives of the Supreme Court given under Article 142 of the Constitution is a step in this direction, ensuring the fundamental rights for the sex workers and their children. Society in general, and administrative authorities in particular, must be sensitive to this matter and sex workers must be treated with normal dignity and it should also be understood that they are also fully entitled to enjoy the fundamental rights as enshrined in the Constitution. It is also a fact that children of the sex workers are also subjected to discrimination and ridicule in the society, which is highly unjustified. Raising the societal awareness is particularly necessary in this respect.