"Entitled to equal protection of the law”: SC recognises sex work as profession

. 4 min read . Written by Muskan Miglani
"Entitled to equal protection of the law”: SC recognises sex work as profession

When the most ancient professions of the country are listed, sex work nearly tops it. But how sex workers are treated is still a point of discourse. For the longest time, sex workers have been treated like a different class; their existence has been deemed decadent, and their rights practically diminished.

But, through a recent judgement, the Supreme Court of India has changed the way sex work is viewed. On Wednesday, 25th May, the apex court of the country passed six regulations in favour of sex workers.

These were a recommendation from an expert committee set up by the court to look into the rights of the said workers in the country.

The three-judge bench headed by Justice L Nageswara Rao directed that the police should not interfere, nor take criminal action against sex workers who are consenting and adults. Recognising sex work as a profession, the court observed that in accordance with Article 21, every individual has the right to a dignified life.

As per the court, “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.”

While sex work is not illegal as per the constitution, running a brothel is. In instances of raids or arrests, sex workers are often mistreated and criminalised. The bench that comprised Justice BR Gavai and Justice AS Bopanna invoked Article 142 of the constitution which allows the court to issue directions until a legislation is passed in the Union of India. So, while the Centre has its apprehensions about passing the ten aforementioned recommendations, the court has held six of them in place.

In doing so, the court directed all the law enforcement agencies and officers working under the umbrella of the Immoral Traffic (Prevention) Act, 1956 to be mindful of the rights, dignity and safety of the workers.

“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 the Immoral Traffic (Prevention) Act, 1956.”

Further to this, "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.”

This remark becomes especially monumental because a lot of people consider sex work illegal. In its slew of directions, the court has made it glaringly clear that an individual who performs sex work voluntary cannot be arrested or mistreated for doing so. Every individual has the right to choose a profession, with sex work being one of them.

The court also directed the Press Trust of India to issue guidelines to prevent indecent behaviour towards sex workers in the name of raids and rescue. The bench remarked: “The newly introduced Section 354C of Indian Penal Code (IPC), which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.”

Further, the court held that in cases where a sex worker undergoes assault, they must get the required medico-legal care as per Section 357C of CrPC.

The police must side-step from their usual “brutal and violent” behaviour towards these individuals, and must not discriminate against them if a complaint of sexual nature is filed by them.

The Court also held that children who are found in brothels must not be taken away for solely being present there. If a concerned child belongs to a sex worker, they have as much right to a dignified life as any other child. They must not be presumed to be 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.”

The court ordered that its directives are binding on all states and union territories, effective immediately. Further, the states were ordered to look into shelter homes where sex workers were being held under the name of rescue operations. All ITPA (Immoral Traffic (Prevention) Act) homes are to be surveyed so the workers who are detained against their will can be released in a time-bound manner.

This judgement by the Supreme Court comes as a blessing for sex workers in the country who have long been deprived of equality, both in rights and dignity. Stripped of basic safety, they become doubly marginalised to the extent of being treated as “a class whose rights are not recognised”.

The court’s recent judgement on issuing of Aadhar Cards along with this serves to bolden the cause of ‘Equality for All’.

But to celebrate this judgement as a win will be a major misstep. This is because while the Supreme Court has accepted the recommendations, they are far from being implemented properly. With the social stigma attached to sex work, and the ground reality being as starkly different from what lies on the paper, we are a far cry from getting these workers the dignity they deserve.

It brings us a lot of questions: Whether these workers will ever get the security they deserve? How will we secure these workers who are at the mercy of police officers and government officials when faced with an adversary? What about women who are still detained at shelter homes? More so, what about transsexual people whose rights are receding every day?

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