The Prolonged War Of Sex Workers

Srishti Agarwal*

On May 19, 2022, the Supreme Court of India issued a landmark decision that ended the age-old stereotypes about sex work and sex workers. The decision to recognize sex work as a legal work was made by a 3-judge bench, which was led by Justice L. Nageswara Rao followed by Justice B.R. Gavai, and Justice A.S. Bopanna. Before comprehending how this historic judgment came into being, we must first examine the origins and history of sex work. Sex work colloquially known as prostitution has had a long-standing history in India and the same is mentioned in numerous puranic religious scriptures of the subcontinent. In fact in the Hindu mythology women who were sexually active were referred as ‘apsaras’. Aside from the mythological representations of sex workers, Indian history has seen additional instances of women being misguided into sex work when she?dedicates?her life to God as a devadasi or being abducted by invaders during war?and tortured to have sex. Forced prostitution is not the only kind of crime against women that was taken under consideration by the court; sex trafficking was also an illegality that debated and discussed in court?

This judgment has a history that stretches back more than ten years. In its ruling for the Budhadev Karmaskar v. The State of West Bengal; 2010[1], ?the Supreme Court ordered the formation of a panel in 2011 which constituted Mr. Pradip Ghosh as the Chairman and Mr. Jayant Bhushan as the Senior counsel of this panel. This committee was responsible to come up with suggestions in relation to the following problems:

i.???Preventing sex trafficking

ii.???Rehabilitation of sex workers who wish to leave sex work.

iii.???Favourable circumstances for sex workers who want to continue their profession with dignity.

In 2016 the panel submitted a comprehensive report with recommendations to the government. It was recommended to provide any victim of sexual assault with relief facilities including immediate medical assistance and rehabilitation, the state government was directed to conduct a survey and rescue all women who are forced to perform sex work against their will Furthermore, it was recognised that the attitude of police towards sex workers was brutal and violent hence a sensitisation drive should be conducted by the authorities so that the police force treats the sex workers with dignity and respect. The panel recommended the press council of India to give adequate guidelines and rigorous restrictions to media houses in order to not release any images or identities of sex workers to ensure the protection of their anonymity. Aside from these instructions, they also emphasized strongly that the state and union governments conduct workshops and provide services that inform workers of their legal rights and the judicial protection they have against harassment and voyeurism. Moreover, a number of recommendations regarding the functioning of a brothel and upbringing of children born in a brothel to a sex worker were made.

The court was informed, that though the panel gave its recommendations?in 2016 the parliament had not taken any action until then. The Supreme Court of India subsequently made the decision to act independently and exercised the powers vested with them by Article 142 of the constitution.[2] Supreme Court instructed the federal and state governments to rigorously abide by the committee's recommendations in their?respective jurisdictions?until the parliament passes legislations in line with the panel’s recommendations.

It was argued that the fundamental right to freedom and life granted under Article 21[3] of the constitution is uniform for all citizens and no discrimination can be practiced against sex workers based on their profession. Every individual has the right to live with dignity and respect including the sex workers and their children. While instructing the state and Union governments to abide by the recommendations of the panel the most significant instruction that strengthened the decree of allowing consented sex work?as a profession was the direction to the responsible authorities to issue Aadhar cards to sex workers based on a proforma certificate issued by Unique Identification Authority of India (UIDAI) and filed by the Gazetted Officer at National Aids Control Organization (NACO) or the Project Director of the State Aids Control Society.?Additionally, the judiciary also assured that this process shall not violate confidentiality, including the issuance of any codes to the Aadhar enrolment numbers that designate the cardholder as a sex worker. This ensured that they protected from any kind of discrimination and ill treatment in public. The bench was with the opinion that this is a very necessary step and without it the workers would not be able to avail any benefits they are entitled to. This judgement manages to make its place amongst the landmark judgements as it enables sex workers to uphold their dignity and avail their rights like any other citizen of the nation

It is utterly absurd to disregard the presence of sex work as a work?in a society where prostitution as a profession is as old as the scriptures of the land. Decriminalization of consensual sex work after following proper rules and regulations will ensure that these workers get a better livelihood, wage and protection against any harassment and voyeurism. This ruling according to me represents a step toward progressive thinking which will eliminate social vices from the society. The court has made it clear that only voluntary prostitution has been decriminalized; sex trafficking and forced prostitution remain against the law. Although they have won their battle against?law, sex workers still have a long way to go in their battle with deeply embedded social ideology and structure of India.

[1] Budhadev Karmaskar vs state of West Bengal on 14 February 2011 https://indiankanoon.org/doc/1302025/

[2] Enforcement of decrees and orders of Supreme Court and unless as to discovery. The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

[3] Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.

About the author: Srishti Agarwal is a second-year student at Jindal Global Law School and is pursuing a BCOM LLB (Hons.) degree. She looks forward to pursuing a career in the judiciary and is particularly interested in subjects relating to criminal law and women's rights.