The Supreme Court has recognized prostitution as a profession, holding that all those who engage in it, as well as their children, are entitled to the same human “decency and dignity” as others, as well as the “opportunities” to grow and advance in their lives guaranteed under Article 21 of the Constitution — right to life.
“Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are pushed to society’s margins, deprived of their right to live with dignity and opportunities to provide the same to their children,” Justices L. Nageswara Rao, B.R. Gavai, and A.S. Bopanna wrote for a three-judge bench.
The court warned police across the nation not to be “brutal” or “aggressive” towards sex workers and “not to abuse them, both verbally and physically, subject them to violence, or compel them into any sexual activity” in order to preserve the rights of sex workers and their children.
Noting that police attitudes toward sex workers are “often brutal and violent,” as if “they are a class whose rights are not recognised,” the court directed that the police and other law enforcement agencies be “sensitised to the rights of sex workers,” who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens, in a recent order pronounced on May 19, 2022.
In exercising its exceptional powers under Article 142 of the Constitution, the court announced 10 recommendations from a panel established on July 19, 2011 as its instruction. The court stated that its orders would remain in effect until the Union of India enacts a legislation, noting that the Central government has been dragging its feet on drafting a law due to objections over some proposals.
The court stressed that the orders it is issuing are purely for the sake of sex workers’ rehabilitation and other related matters.
“Notwithstanding the profession, every individual in our country has the right to a decent existence under Article 21 of the Constitution of India,” the decision added, citing the indignities and prejudice faced by sex workers. The authorities tasked with enforcing the Immoral Traffic (Prevention) Act 1956 must keep in mind the fundamental protection afforded to all citizens of our country.”
“When it is apparent that the sex worker is an adult and is participating with consent, the police must refrain from intervening or taking any criminal action,” the court stated, insisting that sex workers are entitled to equal protection under the law.
The court stated that there is worry that police see sex workers differently than other people, and that when a sex worker reports a “criminal/sexual/any other form of violation,” the police must take the allegation seriously and act in line with the law.
According to Section 357C of the Code of Criminal Procedure 1973, read with the March 2014 health ministry “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence,” any sex worker who is a “victim of sexual assault” should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance.
“Whenever there is a raid on any brothel… the sex workers concerned should not be jailed, penalised, harassed, or victimised,” the court noted in one of the suggestions delivered as instructions, emphasising that “voluntary sex work is not criminal, and only maintaining the brothel is prohibited.”
“No child of a sex worker should be removed from the mother solely because she is in the sex trade,” the court declared, adding that “if a kid is found living in a brothel or with sex workers, it should not be inferred that he or she has been trafficked.”
Whether the sex worker claims to be her son or daughter, testing can be done to see if the allegation is true, and if it is, the youngster should not be removed forcefully.”
The court has asked the Press Council of India to issue appropriate guidelines for the media to “take utmost care not to reveal the identities of sex workers, during arrest, raid, and rescue operations, whether as victims or accused, and not to publish or telecast any photos that would result in disclosure of such identities,” in order to protect the identities of sex workers from media exposure.
The court ordered the issue to be listed on July 27 and gave the Union of India six weeks from Thursday to respond to the panel’s recommendations.