Work is Worship : an old proverb heard long back from our teachers in school, still teaches us that real worship is work. It does not take away the joy of worshipping God, but it lays emphasis on work as worship. While it is enthusiastic for mind to spend hours worshipping God, it is also significant to worship your work. But if the said work/worship is prostitution, for once it shattered our thoughts. But the hard fact is that prostitution is the oldest profession in the world, accepted in the society, from the old times this accepted profession has been seen with hatred and no rights were ever given to sex workers although being a section of the society.

Right to profession : A Fundamental Right given under our Constitution, Article 15 is that Every citizen of India is having freedom to choose an occupation and right to engage in work. Everyone has the freedom to pursue a freely selected or accepted career and to work.

Prostitution as Profession : Prostitution is the oldest profession in the world. For sex workers, sole source of livelihood is sex trade. Sex workers are adults who receive money or goods in exchange for consensual sexual services or erotic performances, either regularly or occasionally. 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 removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.

Apex Court with powers conferred under Article 142 of the Constitution of India, pleased to issue ( in a matter titled as Budhadev Karmaskar vs The State of West Bengal on 19 May, 2022 Legal Eagle (SC) 617) the following directions which will hold the field till a legislation is made by the Union of India.

The directions that are issued relate only to the rehabilitation measures in respect of sex workers and other connected issues. The panel has recommended in respect of the third term of reference in the following terms:

(i)            Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’. When 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.

ii)       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, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

iii)     Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.

iv)      The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.

v)       Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coe4rce them into any sexual activity.

vi)      The Press Council of India should be urged 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.

Vii)    Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.)must neither be construed as offences nor seen as evidence of commission of an offence.

Viii)   The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.

ix)      The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

x)       No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade.

(xi)    Apex Court also said that --The competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act. 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 of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act, 1956.

“Notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21.” With these words, the Supreme Court recognised prostitution as a profession and said that sex workers are entitled to dignity and equal protection under the law.

The Immoral Traffic (Prevention) Act, 1956, deals with sex work in India. Although voluntary sex work isn't illegal under the law, certain activities related to prostitution, such as owning a brothel and inducing into prostitution, are illegal. Therefore, the law penalises those who facilitate “prostitution” International scenario. Several countries in the world that have various degrees of regulations related to sex work, legalising and ensuring safeguards for sex workers. Countries like New Zealand, Denmark, Germany and Greece have very progressive measures regarding sex work ensuring that the workers’ health and financial situations are taken care of.

In India, it is nowhere close to becoming extinct. The problem, however, is not in the work per se. It is in the way the work is perceived.

Legalising sex work, however, could change all of this. It could open up the doors to legal protection for sex workers against sexual harassment. According to the SC’s directions, the police have to take the complaints of sex workers seriously. The callousness with which the police generally approach the complaints of sex workers as “normal occupational outcomes” would no longer be acceptable. Our country already has a law against harassment at the workplace recognising any form of distress — physical, emotional, sexual — preventing a woman from doing her work as a punishable offence. With the latest directions from the SC, any sex worker who is a victim of sexual assault will be given all of the same services as any other survivor of sexual assault, including immediate medical attention. Moreover, being acknowledged as a profession could also help improve the poor condition of healthcare facilities and the resultant vulnerabilities that sex workers endure. In the near future, medical benefits and many other benefits that employed people in our country enjoy could also be a reality.

Conclusion: Need of the hour is to accept the fact and to live with it accepting the reality. Efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above. To sum up this article with India’s Supreme Court Recognizes Sex Work as a Profession. Voluntary sex work is legal in India but trafficking for sex is punishable under the law.

RAJIV RAHEJA
Advocate on Record,
SUPREME COURT OF INDIA