In a significant order recognising sex work as a “profession” whose practitioners are entitled to dignity and equal protection under law, the Supreme Court has directed that police should neither interfere nor take criminal action against adult and consenting sex workers.
What did the court observe?
- Right to life with dignity – 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.
- Children of sex workers – A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.
- Victims of sexual assault – The court ordered the police to not discriminate against sex workers who lodge a criminal complaint, especially if the offence committed against them is of a sexual nature. Sex workers who are victims of sexual assault should be provided every facility including immediate medico-legal care.
- Right to Privacy – The court said media should 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”.
- The legislation governing sex work in India is the Immoral Traffic (Prevention) Act. The Suppression of Immoral Traffic in Women and Children Act was enacted in 1956. Subsequent amendments were made to the law and the name of the Act was changed to Immoral Traffic (Prevention) Act.
- The legislation penalises acts such as keeping a brothel, soliciting in a public place, living off the earnings of sex work and living with or habitually being in the company of a sex worker.
- This Act represents the archaic and regressive view that sex work is morally wrong and that the people involved in it, especially women, never consent to it voluntarily.
- After all, in popular depiction, entry into sex work is involuntary, forced, and through deception. As a consequence, it is believed that these women need to be “rescued” and “rehabilitated”, sometimes even without their consent.
- While this is a valid argument for minor girls, for many consenting adult sex workers, it has been a problem. This is what has led to the classification of ‘‘respectable women” and “non-respectable women”. This view is based on the belief that sex work is “easy” work and no one will or should choose to practise it. It thus perpetuates the prejudice that women who do practise sex work are morally devious.
How the Act has penalised the sex workers?
- The Act has not only criminalised sex work but also further stigmatised and pushed it underground thus leaving sex workers more prone to violence, discrimination and harassment.
- The Act denies an individual their right over their bodies. Moreover, it imposes the will of the state over adults articulating their life choices.
- It gives no agency to the sex workers to fight against the traffickers and in fact, has made them more susceptible to be harassed by the state officials.
- The Act fails to recognise that many women willingly enter into agreements with traffickers, sometimes just to seek a better life as chosen by them.
- Evidence shows that many women choose to remain in sex work despite opportunities to leave after ‘rehabilitation’ by the government or non-governmental organisations.
What must be done?
The Justice Verma Commission had also acknowledged that there is a distinction between women who are trafficked for commercial sexual exploitation and adult, consenting women who are in sex work of their own volition. We must recognise sex work as work and stop ourselves from assigning morality to their work.