The Bombay High Court (HC) issued an order last week, allowing the release of 3 sex workers who had been forcibly detained at a women’s hostel for a year. The order stated that everyone has the right to choose their own profession – which includes sex work.
Yesterday, on the 29th of September, the Supreme Court (SC) also directed all states to provide food to sex workers during the lockdown. The order comes after a petition in court to support the lakhs of sex workers who have been rendered jobless during the lockdown, and left out of COVID-19 responses due to the social stigma against their profession.
These recent judicial verdicts open the doors for a possible growth in recognition of sex workers as deserving of humane treatment and human rights, and a de-stigmatisation of the profession.
Bombay HC Orders That The Three Sex Workers Cannot Be Detained Without Their Consent
A year ago, in September 2019, the local police of Malad, Mumbai “rescued” 3 sex workers. Since then, the women have been detained in a women’s hostel. The magistrate officer refused to hand over the women’s custody to their respective mothers or allow them to go back home to Uttar Pradesh.
The reason given for this was that the women were from a community – the Bediya community – with a long tradition of prostitution. The magistrate believed keeping the women in the hostel to counsel them to earn their income “in a dignified manner”, and “to restrain from prostitution”, was in their best interest.
After being detained against their wishes for nearly a year, the sex workers approached the Bombay HC and asked to be released.
The High Court observed that adult women have the right to choose their profession and cannot be detained without their consent.
Justice Prithviraj K. Chavan stated that “There is no provision under the law which makes prostitution per se a criminal offence, or punishes a person because he indulges in prostitution.”
He also clarified that the purpose of the Immoral Traffic (Prevention) Act, 1956, which was what was cited when detaining the women, was not to abolish prostitution or the prostitute.
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It was further clarified that what is punishable under the law is abuse or exploitation of any individual, for commercial purposes, and soliciting in public places. The HC observed that there was no evidence that suggested that the sex workers in question were soliciting or running a brothel.
The HC ordered their immediate release from the “corrective institution”. The sex workers, being adults, “have a right to reside at the place of their choice, to move freely throughout the territory of India, and to choose their own vocation.”
These were fundamental rights guaranteed to all under the Indian Constitution, the Bombay High Court concluded.
The Supreme Court Recognises Sex Workers’ Right To ‘Live With Dignity’, Directs Food To Be Provided To Them During Lockdown
A plea filed by the Darbar Mahila Samanwaya Committee to the Supreme Court, highlighted the suffering faced by sex workers during the current pandemic.
After hearing the plea, the Supreme Court has ordered all union and state territories to provide dry rations to all sex workers identified by the district authorities and National AIDS Control Organisation (NACO), without asking for identity proof.
The bench led by Justice LN Rao said, “This is a human problem. People are not getting ration for want of ration cards. They are under severe distress.”
The bench has given the states 4 weeks within which to file an affidavit before it, specifying an implementation of the court order and a number of the sex workers that will benefit from it.
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It has also asked the Centre whether the financial assistance given to transgenders during the pandemic can be extended to sex workers within the four-week period.
These Judicial Orders Are A Step In The Right Direction To Recognising Sex Workers As Humans Protected By Law, And Destigmatising The Profession
The very polarised debate on the ethics, safety, and legality of sex work has been going on for a long time now. The one side stands by women’s autonomy over their own bodies, expressions of sexuality, and choice of vocation, while the other side highlights higher risks of sexually transmitted diseases, and the rampant human trafficking underbelly of sex work.
Irrespective of judicial and social views, the fact remains that India has more than 8.68 lakh female sex workers, according to NACO, a body under the Ministry of Health and Family Welfare. Additionally, 62 per cent of the transgender population of over 60,000 people, is engaged in sex work.
This is a section of individuals who have, as we debate the ethics of it all, been ostracised by society and woefully neglected by authorities.
By clarifying that sex work is not a punishable act under the law, and ordering the release of the 3 sex workers, the High Court has asserted that, as long as the vocation is a voluntary choice, sex work is not a crime, and sex workers are protected by the law. By mandating free provision of food to the distressed sex workers, the Supreme Court has dismissed stigma and recognised sex workers as humans in need of support during this crisis.
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