This article is written by Sivarenjini G. B., Editor Trainee of LJRFvoice.com.
“Human Dignity is a political freedom” -Olof Palme
INTRODUCTION
In the preamble and Article 1 of the Universal Declaration of Human Rights, 1948 [UDHR] which is regarded as the ‘International Magna Carta for all mankind’ it is enshrined that “All human beings are born free and equal in dignity and rights”. In these words, it is perspicuously stated that every person is entitled to the inalienable right to live a dignified life without discrimination. Article 21 of the Indian Constitution guarantees the right of persons to live with human dignity. Not surprisingly, the guardian of our Constitution, the apex court of India also recognised the constitutional tenet of human dignity in myriad instances. It is clearly embedded in the observation of honourable court in the renowned case Naz Foundation v. Government of NCT and others. In that case, the court held that “the Constitutional safeguard of human dignity expects us to recognise the worth and value of all people as an individual of our society”.
Provided that dignity is an integral right of all individuals from various walks of life practising diverse professions, any kind of deprivation of a dignified life experienced by any strata of society is a taint on India’s constitutional democratic fabric. Such a disgusting taint was ingrained in our democratic society, visibly manifested by the brutal way in which the sex workers of our country were treated. The right to dignity was a far cry for many of those lives, given that the persons practising sex work are denied of the basic necessities of life. The irony is that most of the atrocities they faced were from the police officers who are supposed to protect the citizens of our land. A host of instances where the dignity of sex workers was unforgivably questioned now stands before us as a pertinent question to our law enforcement mechanism. Annoyingly, our Parliament has not come up with legislation for the welfare of sex workers, thus constituting a void in a nation that is on a path to accomplishing the goal of a welfare state.
But a ray of hope came to us in the form of directions issued by the Supreme Court in the month of May. It revitalized the conscience of our democratic land shackled by the taboos of prejudiced thoughts. Recognising sex work as a profession, asserting that basic protection of human decency and dignity extends to sex workers, a bench comprising Justices L. Nageswara Rao, B.R.Gavai, and A.S.Bopanna has directed that the police should treat sex workers with dignity and should not abuse them verbally or physically. The directions deal with a catena of aspects including the right to health of the persons carrying out this profession.
STATUS OF SEX WORKERS IN INDIA: THROUGH THE EYES OF LAW
By adding religious and pseudo-moral colours, our society inhumanely designated sex work as a sinful and disgraceful act. Although sex work is prevalent in every city and village a vast multitude of our society abstains from recognising sex work as a profession. Living under the constant trauma of being tormented by society they live a life full of hardships. Their children are often denied school admission. Facilities of better healthcare, bare necessities of life like adequate nutrition, shelter, clothing, and even equal protection under Article 14 of the Indian Constitution are undoubtedly a distant dream for them. When the perpetrators and abusers hold their heads high in society, the laments of these hapless people for the fundamental right of dignity continue forever.
India has nearly 3 million sex workers, with an overwhelming majority in the age group of 15 to 35. Being one of the oldest professions in the world, the system is not free from patriarchy. When the sex workers approach the police against sexual assault the policemen often refuse to lodge the complaints, thus posing a threat to the dignity of sex workers. This issue is well dealt with in the set of guidelines recently provided by the Supreme Court. It brought into light the atrocities of the police against sex workers. One of the heart-wrenching observations of the Supreme Court was that the sex workers are brutally treated by the police as if they are a class whose rights are not recognised. The court ordered the police to treat all sex workers with dignity, not to abuse them, both verbally and physically, and not to subject them to violence or coerce them into any sexual activity. In the wake of the increasing miseries experienced by the sex workers, the remarks of the apex court come as a sigh of relief.
It is well understood from the contemporary social realities that many sex workers are women who are mothers. The period of the pandemic saw a whopping rise in the number of sex workers migrating from villages to cities because of financial vulnerability and lack of food and shelter. When we highlight the problem faced by the sex workers, the transgender community who practices this profession often goes unnoticed. Voluntary sex work has always been legal in India. The Indian Penal Code includes provisions for dealing with human trafficking [by virtue of its Sections 366A, 366B, and 370B] and child prostitution [Sections 372 and 373] as does the POCSO Act. In neither of these laws, the person involved in sex work is criminalized. The Act which is being widely used by the police to target the sex workers is nothing but the Immoral Trafficking [Prevention] Act [ITPA], 1956. In this statute also voluntary sex work is not declared illegal.
Considering these miserable realities, the directions issued by Supreme Court perfectly symbolize judicial creativity. The court issued these directions in the exercise of power under Article 142 of the Indian Constitution accepting some recommendations presented by a court-appointed panel on the rights of sex workers. It is crystal clear that the major purpose of issuing these directions is to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. However, this set of guidelines is an offspring of age-long cries for a framework that ensures equal protection of sex workers under the law.
BUDHADEV KARMASKAR V. STATE OF WEST BENGAL: A PATH BREAKER
The set of guidelines provided by the Supreme Court a few days back is now a topic under heated discussion. But the roots of all these developments are embedded in a legal battle waged for securing justice for a deceased sex worker who was brutally murdered. The wail for justice was raised not only for the deceased but also for the millions of downtrodden persons practising this profession under the constant surveillance of the watchful eyes of our society. More than being a trial for the murder crime which is punishable under Section 302 of the Indian Constitution the case went far beyond exploring the grief and tears of the sex workers out there. The case came before the honourable Supreme Court in the year 2011 in the form of a criminal appeal. In 1999, the appellant Budhadev Karmaskar gravely battered the head of the deceased sex worker in the red light area of Calcutta when she had refused to have sexual intercourse with the former. She died as a result of the injuries.
The Supreme Court of India described it as ‘hideous and barbaric’. It observed that the trial court had rightly convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to life imprisonment. It also recognised the decision of the High Court in upholding the conviction and sentence imposed by the trial court. On dismissing the appeal the Supreme Court was in reality, fuelling a wheel of an unparalleled judicial activism which has reached a successful zenith with the issuance of guidelines. The Court in this case, clearly demarcated the boundaries between coercion and consent saying that the sex workers should be able to indulge in the act of prostitution with dignity and choice and not by force or falsification. One of the core features of the judgment was that sex workers are also human beings. Those words proved to be a mark of recognition for the work being carried out by the sex worker community.
By quoting the novels and stories of eminent Bengali writer Sharat Chand Chattopadhyaya, poems of iconic Urdu poet Sahil Ludhianvi and the character in Dostoyevsky’s famous novel ‘Crime and Punishment’, the Supreme Court of India delved deeply into the marginalised lives of sex workers in India. It ascertained that they are entitled to a life of dignity in view of Article 21 of the Indian Constitution.
The apex court directed the Central and State Governments to prepare schemes for giving technical or vocational training to sex workers and sexually abused women in all cities in India. The court clarified its stance stating that the schemes should not only provide them with such training but also decide in what way they can be rehabilitated and settled by offering them fitter employment. The high-spirited welfare perception of our judiciary can be inferred from this judgment, as it goes on to exemplify its statement. The court supplements that if a technical training is for some craft like sewing garments, then a market has to be provided for such garments, otherwise the products would remain unsold and unused, and as a result, the women will not be able to feed themselves. The judgment thus shaped a broader vision of rehabilitation and the welfare state. The case literally sparked the flame of deliberately suppressed thoughts and numerous NGOs started coming forward for the unheard voices of sex workers.
A GLIMPSE OF THE EARLIER STEPS
A panel was set up by the Apex Court for sex workers under the chairmanship of Senior Advocate Pradip Ghosh by virtue of its order dated 19.07.2011 following the verdict of honourable Supreme Court in the case Budhadev Karmaskar v State of West Bengal. Three broad aspects were considered by the panel. They include:
I. Prevention of Trafficking: Human trafficking is one of the heinous organised crimes in India despite the fact that it is prohibited by our Constitution and various other statutes.
II. Rehabilitation of sex workers who wish to leave sex work: Rehabilitation of sex workers is considered one of the finest ways of providing them with fundamental necessities of their life. The panel realised that there existed no exclusive framework for the rehabilitation of sex workers who wish to leave that profession. To a startling extent all rescued, irrespective of whether they seek help or not are sent to state-owned shelter homes, not sending them to their home, and making them a recluse in society. One of the recommendations of the panel was to design a scheme in order to rehabilitate and protect those who seek it. In short, the rehabilitation of sex workers is firmly associated with their right to a dignified life.
III. Conditions conducive for sex workers who wish to continue working as sex workers with dignity: This was a gray area of concern in light of the social predicament of that time. Things have not undergone remarkable changes since. One of the foremost challenges that rage before our society even today is the scary stigma faced by the sex working community. The term was modified later as ‘conditions conducive to sex workers to live with dignity.
On account of all these divergent aspects, a comprehensive report was submitted by the panel. In 2016 when the matter was listed, the Union Government had informed the Supreme Court that the recommendations provided by the panel are under its consideration. Draft legislation was published inserting the same. But disappointingly legislation has not been enacted to date, which is certainly a dishonour to the sex workers of India. It is at this juncture that the apex court saw it vital to exercise its power under Article 142 of the Indian Constitution to issue guidelines, till the legislation comes up to occupy the void.
REHABILITATION: A HERCULEAN TASK
Although the rehabilitation projects are spearheaded by the government with an objective to ensure the well-being of the sex workers who are subjected to merciless treatment by the abusers, it often infringes their right to bodily autonomy. Moreover, there are instances where the rehabilitation activities turn out to be a moral disciplinary action preaching the pseudo-culture of Indian society. The sex workers who are rescued and produced before a Magistrate are sent to correctional homes for no less than two or three years. In 2020, the Bombay High Court condemned and set aside an order of the Metropolitan Magistrate, whereby the custody of three sex workers to their families was declined and they were sent to corrective homes. The High Court reiterated the ethos of the constitutional democracy and held that being adults they have the right to reside at the place of their choice, to move freely throughout the territory of India, and to choose their own profession as guaranteed by the Part III of Indian Constitution which enlists fundamental rights. In the recently issued guidelines also the Supreme Court has directed the State Governments to do a survey of all the ITPA Protective Homes in order to review the cases of adult women who are detained against their wish and process their release in a time-bound way.
Sex workers are not safeguarded by labour laws and trade unions. Ujjawala scheme is a laudable step taken by the Ministry of Women and Child Development, which envisages the rehabilitation and reintegration of victims of Trafficking and Commercial Sexual Exploitation. Right to legal aid is still a far-off hope for the sex workers of our country. More than the poor socioeconomic status what leaves them more vulnerable is the intolerance shown by the society to them. In this context judicial officers have to become more sensitive and empathetic towards these sections and provide them with free legal aid. The National Legal Service Authority is one such institution that came up with a solution for this crisis. Under the NALSA [Victims of Trafficking and Commercial Sexual Exploitation] Scheme, 2015 legal services are provided to the victims of trafficking and sexual exploitation including children, young adults of whatever sex, women, sex workers, and Transgender. One of the guidelines issued by the Supreme Court is the one urging the Central Government and State Government to carry out workshops for educating the sex workers about their rights, the legality of sex work, the rights and obligations of the police, and what is permitted/prohibited under law. These workshops are to be organised through National Legal Service Authority, State Legal Service Authority, and District Legal Service Authority.
Shockingly, sex workers have no access to credit facilities offered by the state because they are unable to open bank accounts, due to a lack of supporting documentation. The state authorities should take measures to issue ration cards, as well as voter identification cards to sex workers as both of these, are indispensable to ensure them a life of dignity. The Supreme Court, on Thursday, directed the Unique Identification Authority of India [UIDAI] to issue Aadhaar Cards to sex workers on the grounds of a Pro-forma certification. To be precise the concept of rehabilitation covers wider arenas when it comes to sex workers as they are the people whose basic human rights have been crushed into uncertainty.
MEDIA INTRUSION INTO PRIVACY: AN UNPARDONABLE CRIME
The right to privacy is recognised as a fundamental right by the Supreme Court of India. It is an undisputed fact that for enjoying the fundamental right of right to dignity, the right to privacy is also inevitable. Hence both these rights are interrelated. But sadly the sex workers of our country are deprived of the fundamental right of privacy, especially by the unethical acts of media personnel. The Supreme Court incorporated this issue in its guidelines and directed the Press Council of India to issue appropriate guidelines for the media to take care not to reveal the identities of sex workers, in the course of arrest, raid, and rescue operations whether as victims or accused and not to publish or telecast any photos that would cause the disclosure of such identities. The Court further ordered that the newly introduced Section 354C of IPC by which voyeurism is criminalised should be enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation. This was an area that was merely ignored by the authorities but the intervention of the judiciary in this regard is truly hopeful as the court upholds that dignity is not negotiable and the same cannot be infringed by the act of media.
CONCLUSION
Sex work is a profession with a legal status that has its own dignity like any other profession. But the voice of the people who are practising the same is oppressed, not only by a section of society but by the law enforcement mechanisms also. It is on this occasion that the guidelines are issued by the Supreme Court to hold the field till a legislation is enacted. When it comes to sex work, consent and age become immensely important, as there are high chances of forceful sexual intercourse and an increase in exploitation and abuse. As observed by the Supreme Court a decade back, abject poverty is one of the major reasons that force a person, especially a woman to take up sex work. Providing safe and conducive conditions for those who carry out this occupation and rehabilitating those who desire to leave this profession are the ways by which the dignity of sex workers can be guaranteed.
ENDNOTES
1. Police Should Not Abuse Sex Workers, Media Should Not Publish Their Pictures During Raid& Rescue Operations: Supreme Court Issues Directions, LiveLaw, 28 May 2022, 09.45 pm, https://www.livelaw.in
2. Supreme Court Directs UIDAI To Issue Aadhaar Cards To Sex Workers Without Insisting On Proof of Residence, LiveLaw, 26 May 2022, 09.41 am, https://www.livelaw.in
3. Universal Declaration of Human Rights, 1948
4. Indian Penal Code, 1860
5. Immoral Trafficking [Prevention] Act, 1956 6. Budhadev Karmaskar vs. State of West Bengal, Criminal Appeal No(s) .135/2010
