Introduction

A prostitute is a person who engages in sexual activity with customers in exchange for financial gain. Different countries and even different parts of the same country have different views on prostitution, which can range from being illegal to be legalized and even regulated in some cases. The rules apply the same to business as they do to sexual entertainment. The changing legal and social climate surrounding prostitution has led to a wide range of conclusions across the globe. Prostitution has been viewed very differently by different people. Some see it as a form of cruelty or barbarism towards women and children that contributes to the emerging crime of human trafficking, while others have a very different view. India is home to the second-oldest prostitute industry in the world (after farming). Records from the past attest to its existence.

Whether or not sex workers have any rights and are instead treated as sexual objects is an open question. India has failed to adequately defend the rights of sex workers, despite being a member of various international accords on human rights, including women’s rights, and despite the Indian Constitution guaranteeing people’s rights against discrimination. In light of this, the article will discuss the human rights of sex workers in India and whether or not the Indian legal system recognizes these workers’ rights. Our discussion will also include an examination of the differences and similarities between the prostitution laws of various nations.

Budhadev Karmaskar v State of West Bengal & Others

Budhadev Karmaskar was charged with the heinous murder of a prostitute who refused to engage in sexual activity with him. In 2004, Calcutta High Court ruled that the appellant was guilty of murder, bringing an end to the proceedings. With the proclamation of the judgment of conviction, the appellant filed an appeal with the Supreme Court against the punishment imposed on him. In 2010, Criminal Appeal No. 135 was dismissed due to the Supreme Court’s affirmation of the Calcutta High Court’s ruling and the Supreme Court’s Suo Motto action of converting the appeal into Public Interest Litigation.

Case Facts

In 1999, the appellant Budhadev Karmaskar severely beat the head of a diseased sex worker in Calcutta’s red-light district when she refused to have a sexual encounter with him. In order to protect her sanity and dignity, the decedent’s head was repeatedly struck against the floor of a room, which resulted in her brutal death. Due to this act, the appellant was found guilty of the heinous crime of murdering a sex worker on charges of assault leading to death. Both the High Court and the Supreme Court upheld the conviction on the basis that sex workers should not be looked down upon, but should be able to engage in prostitution with dignity and free will, and not through coercion or deception.

The Supreme Court has also taken corrective measures to reinstate the current prostitutes who were forced to engage in prostitution against their will by constituting a panel led by Senior Advocate Mr. Pradip Ghosh, with 4 other panel members and other staff members assisting them. For this, the panel has proposed that the Central Government, the State Government, and the Union Territories each contribute Rs. 10,000,000/-, subject to approval by the Supreme Court, in order to teach vocational and technical skills to sex workers so that they can earn a living and be rehabilitated into society with dignity.

Issues

1. How should Article 21’s reach and its definition of “life” be applied to guarantee that sex worker and their progeny have access to the right to live with dignity?
2. To choose a location for the panel’s accommodations.
3. How can sex workers be rehired, saved, and rehabbed into a safer setting?

Justice Markandey Katju and Gyan Sudha Mishra, who made up the judicial bench, made their decisions on the issues raised in this order.

The institution of SC validates the sex labour industry

Sexual servitude is not illegal in India. Sexual service workers should be treated with respect and given the same legal protections as everyone else. This is what a three-judge bench of the Supreme Court (SC) ruled here. It is a historic ruling. It’s a huge relief for the sexual service providers who endure extreme exploitation

Paid sex work is not illegal in India

The Supreme Court of India has ruled that sexual labour is not among the activities that are prohibited by Indian law. Operating a brothel, soliciting in a public place, benefiting financially from the labour of a sex worker, and keeping or frequently associating with a sex worker are all illegal under the Immoral Traffic (Prevention) Act or ITPA. As has been widely reported in the media, the SC does not consider sex work to be a legitimate occupation. What the Supreme Court of India is saying is that everyone, regardless of occupation, has a right to live a dignified life under the Indian Constitution and that this constitutional protection must be taken into account by authorities as they enforce immoral traffic prevention laws.

What it proposes is that people should not verbally or physically abuse sex workers or coerce them into performing sexual acts, even though they are widely reviled and stigmatized by society. The Supreme Court rules that people who work in the sex industry should be treated with respect. The court ordered that law enforcement officers refrain from interfering with or prosecuting sex workers who are adults and who have given their informed consent. Article 21 of the Constitution guarantees every citizen the right to a life worthy of his or her profession.

The law should treat sex workers the same as any other profession. A uniform application of criminal law is required, regardless of age or level of consent. Since sex work is not yet illegal in India, the police should not interfere or take any criminal action against the worker if they are an adult and have given their informed consent.

The Supreme Court’s 2011 decision stands

The Supreme Court reaffirmed its ruling from Budhadev Karmaskar (2011), which held that sex workers have the same basic human rights as anyone else. In 2011, SC convened a panel to investigate how best to protect sex workers from exploitation, help those who have been trafficked recover, and create a supportive environment for those who want to keep working in the sex industry.

The government has published a bill titled “The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill” in 2016, 2918, and 2021, but has taken no further action on it despite having reservations about four of the panel’s ten recommendations. So, until new legislation is introduced on the subject, the court issued an order mandating the immediate implementation of the six recommendations with which the central government has no objections.

Rights of Sex Workers

1. The law should treat sex workers the same as any other worker. Both the age of majority and the presence of informed consent must be treated equally under the law. The police have no right to intervene or undertake any kind of illegal activity if it is obvious that the sex worker is an adult and is giving informed consent.
2. Many people fear that police have a biased attitude toward sex workers. When a sex worker reports a crime, sexual assault, or other violation, the police must investigate the allegation thoroughly and take appropriate action.
3. According to “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence,” Ministry of Health and Family Welfare, and Section 357C of the Code of Criminal Procedure, 1973, 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 (March 2014).
4. Since voluntary sex work is not illegal and only the operation of a brothel is illegal, sex workers should not be arrested during a brothel raid.
5. State governments may be asked to survey all ITPA Protective Homes, with the goal of expediting the review and release of cases involving women held against their will as adults.
6. It’s been reported that law enforcement’s treatment of sex workers is frequently violent and hostile. As if they belong to some unrecognized group whose rights are ignored. All sex workers have the same constitutionally protected rights as any other citizen, and the police and other law enforcement agencies should be trained to respect those rights. The police should not verbally or physically abuse sex workers, force them to engage in sexual activity, or subject them to any form of violence.
7. The Press Council of India should be urged to issue guidelines urging the media to exercise extreme caution when reporting on sex workers’ identities in the wake of the arrest, raid, and rescue operations, whether the workers are victims or suspects, and when publishing or airing photographs that could reveal their identities. In addition, the media should be punished for broadcasting photos of sex workers with their clients under the guise of documenting a rescue operation in violation of the recently enacted Section 354C, IPC, which makes voyeurism a criminal offence.
8. Precautions taken by sex workers to ensure their own safety on the job (such as the use of condoms, etc.) must not be considered illegal or evidence of criminal behavior.
9. When making decisions about sex work, the federal and state governments should consult with sex workers and/or their representatives. This includes the creation of new policies and programs for sex workers as well as the revision or overhaul of existing legislation. They can be consulted before any decision that could affect them is made, or they can be given a voice on the decision-making panel.
10. Workshops should be held by the Central Government and the State Governments through the National Legal Services Authority, State Legal Services Authority, and District Legal Services Authority in order to educate sex workers about their rights regarding the legality of sex work, the rights and obligations of the police, and what is permitted/prohibited under the law. Sexual service providers should be made aware of their legal rights and how to exercise them to protect themselves from exploitation by traffickers and police.
11. No child of a sex worker should be separated from the mother on the sole basis that she is in the sex trade, as was already recommended in the 6th interim Report dated 22.03.2012. Furthermore, it should not be assumed that a minor who is living in a brothel or with sex workers has been trafficked.
12. If the sex worker claims the minor is her son or daughter, the child should not be forcibly separated from the sex worker pending the results of DNA testing. Mr. Jayant Sud, the learned ASG, has presented evidence that the Government of India has some reservations about the panel’s recommendations (with the exception of paragraphs 2, 4, 5, 6, 7, and 9). In addition to implementing the panel’s recommendations as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act. This includes acting in strict compliance with the recommendations made in paragraphs 2, 4, 5, 6, 7, and 9.
13. Article 21 of the Indian Constitution guarantees every citizen the right to a dignified life, regardless of one’s occupation. Authorities tasked with enforcing the Immoral Traffic (Prevention) Act,1956 must do so with respect for the constitutional rights guaranteed to every citizen. After the summer break, we’ll get to work on the rest of the panel’s suggestions.

Conclusion

It is time to realize that getting rid of people who work in prostitution and outlawing prostitution practices won’t end the plight of people who work in prostitution; instead, it will only make their conditions worse because they will be forced to work in secret and will be mistreated in all situations because the act of prostitution won’t be recognized by the law. Since the act of prostitution won’t be recognized by the law, there is no legal status that will facilitate benefiting from and correcting the wrongs, in conclusion, the rehiring of people who have been exploited in the sex industry, whether they are prostitutes, sex workers, or victims of the sex trade, is a matter of right and not of sympathy or privilege.

This article is written by Uddeshya Tiwari, 3rd Year LLB student from Bharati Vidyapeeth University (New law College), Pune.