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Supreme Court rulings on sex work

Commentary from our Founder, Dr Girish Kulkarni

The bench of three Judges of Supreme Court of India (SC) made headlines two weeks ago by giving historical acknowledgement that prostitution is a profession. The SC gave directions for recognising prostitution as a profession and emphasising that sex workers or prostitution like any other professionals, are entitled to dignity and constitutional rights. This decision was based on article 21 of Indian Constitution States Right to Live with Dignity to every citizen.

Snehalaya (with few other NGOs in India) has fought a long battle for three decades. The intention of our fight was to make the law enforcement machinery act according to the fundamental rights in our constitution which believes in dignity of life of every citizen according to article 21.

Now Snehalaya family is hopeful that the acknowledgement by SC will help victims of flesh trade for accessing basic rights and equality.

The condition of women in prostitution is inhuman even in the platinum jubilee year of Indian Independence. Due to lack of ration cards or the fact that prostitutes are not being recognised as valid citizens, makes them ineligible to avail any subsidised resources earmarked for the lower socio-economic sections.

It is a vicious cycle of segregation, deprivation and ultimately, marginalisation. Children born in brothels are not easily accepted into schools.

Prostitution is not illegal in India according to the Indian Penal Code (IPC), however, several activities under prostitution is punishable by law. They include pimping, renting out property for running brothels, etc. In 1956, the Immoral Traffic (Prevention) Act emphasised that sex workers can practice their profession, but any person who makes an earning from prostitution is to be punished. This involves procuring. abducting or inducing a person for prostitution; a move significant enough to ensure trafficking for the sex trade was under check. The Act also states that to lawfully participate in prostitution, prostitutes have to maintain a distance of at least 200 metres from any public place, preferably in an isolated area with no public institutions in sight. This means the prostitution is to be done in secrecy, away from the eye of the larger society. This isolation works into othering prostitutes, putting the legality of their profession in ambiguity.

There are approximately 3 million women are in prostitution in India. The majority of them in between the age group of 15 and 35.

The 15 countries including New Zealand, Denmark, Germany in the world have passed the regulations related to sex work, mostly legalising and safeguarding women in prostitution.

Despite regulations and degrees of bans, it is imperative to identify that prostitution exists as a promising industry, especially in situations of poverty and social inequalities. In India, it is nowhere close to becoming extinct. The problem, however, is not in the work per se. It is in the way the work is perceived. The major issues that prostitutes in India face stem from the fact that despite not being illegal, the secretive nature of prostitution presents an illusion of it being a crime. The police and the legal system contribute to prostitutes being seen more as the perpetrators of crime than being at the receiving end of it. The possibilities of rape, violence and trauma that clients can cause to sex workers have been neglected. Moreover, since the work is seen as “immoral” or “dirty”, any disease caused by poor sexual hygiene and menstrual hygiene — most significantly HIV-AIDS and cervical cancer — does not receive proper medical attention.

Legalising sex work, however, could change all of this. It could open up the doors to legal protection for sex workers against sexual harassment. According to the SC’s directions, the police have to take the complaints of sex workers seriously. The callousness with which the police generally approach the complaints of prostitutes as “normal occupational outcomes” would no longer be acceptable.

Our country already has a law against harassment at the workplace recognising any form of distress — physical, emotional, sexual — preventing a woman from doing her work as a punishable offence.

With the latest directions from the SC, any sex worker who is a victim of sexual assault will be given all of the same services as any other survivor of sexual assault, including immediate medical attention.

Moreover, being acknowledged as a profession could also help improve the poor condition of healthcare facilities and the resultant vulnerabilities that sex workers endure. In the near future, medical benefits and many other benefits that employed people in our country enjoy could also be a reality.

The directions of the SC constitute only the first step towards removing some of the limitations that prostitutes have long faced. In a country like India, which is severely marred by poverty, destitution, hunger and inequalities, survival is the top priority.

Snehalaya has shared suggestions to the Department of Social Justice and Women's Commission of India in the limelight of SC judgement:

All the pending cases on prostitutes in India must be withdrawn with immediate effect. Also, the prostitutes must get back the fines ordered by court. Because most of the prostitutes have taken the loans from private money lenders, brothel keepers with heavy interest. The prostitutes will be free from slavery if they get back their earnings. Also this will give a concrete message to police and prostitutes that the slavery and exploitation has ended forever.

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