"World Through the Window of Sex- Workers"

 ABSTRACT: 

Today, we are living in 21st century, country is growing rapidly, people are learning, unemployment rate is decreasing. Similarly, people are becoming more aware towards their rights and their responsibilities but still many are being deprived from their rights. 

In this article, I’ll be focusing on aspect of sex works, the laws and about their rights. Sex labor has been practiced in India since ancient times, but for a very long time, the society there did not regard it as a respectable occupation. Sex labor has recently come to be associated with prejudice, exploitation, and violence. 

In India, an estimated 8.25 lakh female sex workers (FSW) have been detected. They are viewed as immoral and marginalized by society, which will have an impact on many aspects of their living circumstances. The Apex court i.e. Supreme Court of India ruled on May 19, 2022, that sexual work is a profession just like any other.(1) Workers have a claim to protections, constitutional rights, and dignity. 

Keyword: Sex Labor, Supreme Court, Society, workers, Violence, equality. 

RESEARCH METHODOLOGY: 

This article is grounded in doctrinal methodology because it focuses on analyzing and interpreting legal writings, such as statutes, case law, regulations, and treaties. 

INTRODUCTION: 

"Access to Justice", a Theme for International sex workers, is celebrated every year on 2 June. But do they actually adhere to the same? India has celebrated its 76th Independence on 15th August 2023. It's been many years since we have Article 14, i.e., the right to equality in our constitution. But, do people of society respect the same or treat everyone equally? 

We are all aware that we have the option to report wrongdoings to the police or to other authorities who may be able to provide us with justice. If all else fails, we always say, "I'll see you in court." People continue to have faith in the legal system, believing that justice will ultimately triumph against injustice. 

Recently, a movie named Gangubai Kathiawada was broadcasted which highlighted the plight of "SEX WORKERS" and the rights of their children. Although many of us think they ought to be treated equally, many of us still view them as criminals. Even though we get justice, will the problem that sex workers face in society remain constant or will changes occur? even though changes have occurred because supreme court is taking an active role. 

Even if the law has been made whether society accepts it or whether society will change the law as huge power is vested with the people? This article specifically focuses on the aspect of sex workers and society. 

This article is based on both doctrinal and non-doctrinal research. 

SEX-WORKERS AND THE SUPREME COURT: 

According to the IPC, prostitution in its broadest sense is not illegal; however, certain activities associated with it are punishable under certain provisions of the act, such as 

        A. soliciting prostitution services in public places, 

        B. carrying out prostitution activities in hotels, 

        C. owning a brothel, 

        D. pimping, 

        E. arranging a sexual act with a customer, and so on. 

Indian Constitution Article 19(1)(g) ensures that all citizens will have "the right to practice any profession or to carry on any business" on any occupation, trade, or enterprise." Police officers and courtrooms were both affected. Being overwhelmed with these cases on, there is little or no effect on prostitution. The Prostitutes and their clients pay fines and are soon back on the streets in a revolving door process.(2)

 

Human trafficking has attracted governments, NGOs, researchers, and activists all across the world since the early 2000s. Sex work was thought to be intrinsically demeaning, resulting from compulsion and sexual exploitation of women and girls. The solution, according to abolitionists, is to strengthen criminal penalties for customers and traffickers (pimps and employers), as well as to participate in vigorous "end the demand" (criminalization and shaming) campaigns to discourage men's willingness to purchase sexual services from women. 

In contrast, sex worker activists warn against broad generalizations about human trafficking. They claim that not all sexworkers are women and girls, that not all clients are men, and that not all sex workers are trafficked or compelled to work in sex (BarbBrents, 2013).(3) In fact, a large number of people engage the sex trade because it pays well with increased mobility opportunities and compared to other sorts of labor.  

Supreme Court, the apex court of India has time and again emphasized that sex workers have a right to dignity.(4) Similarly, time and again the people of the society felt about sex workers. weaker section of the society in that they too deprived of their fundamental rights, which are ordinarily available to citizens or to any person. 

The most significant of these fundamental rights include equal treatment under the law (Art.14) and the right to dignity (Article 21). 2011 has a huge impact on the same. The Supreme Court established a panel in 2011 to make recommendations on stopping human trafficking, helping non-voluntary sex workers get their lives back on track, and creating the conditions necessary for voluntary sex workers to live with dignity because they are also people just like us and are bound happily together. 

In 2012, the group published its recommendations after developing the penal code. We can observe that the legislature did not express their intention to include the suggestion because ten years later, a bill including the panel's recommendations has still not been passed. As a result, the Court made the decision to use its authority to issue instructions in temporary orders. (5)  

In its order from May 7th, the Court noted that because of the social stigma associated with sex work, the group lives on the periphery of society and has been denied the right to opportunities and a dignified life, since society plays a crucial role in addressing the issue of social well-being.(6) 

The Court stated that "the right to carry on such functions and activities as constituting the bare minimum expression of the human-self" has been substantially added to the fundamental right to life jurisprudence and that this very right applies to sex workers and their offspring. Expanding on this point, the Court issued certain guidelines for central and state governments, stating that: (7)

“sex workers are entitled to equal protection of the law; facilities available to sexual assault survivors should also be provided to sex workers who are sexual assault victims; sex workers should not be arrested, penalized, harassed or victimized during raids, as running a brothel is illegal and voluntary sex work is not; state governments may be directed to check the illegal detention of adult sex workers; police and other law enforcement agencies should be sensitized to the rights of sex workers”. (8)

The Court, moreover, in its previous order, directed the government to process and issue ‘Aadhar Cards’ (Biometric Identity cards), Voter Identity Cards (“VIC”), and Ration Cards.

  

REGULATIONS AND LEGAL FRAMEWORKS: 

The term "sex worker" acknowledges that having sex is a job, whereas the term "prostitution" connotes crime and immorality. Both terms have a different meaning depending on whether the person having the sex is consenting to it or whether they are being forced, coerced, or otherwise forced to have the sex. A large portion of those who provide sexual services prefer the word "sex worker" and consider the term "prostitute" to be derogatory and stigmatizing, which leads to their exclusion from legal, medical, and social services. 

The Suppression of Immoral Traffic Act, 1956 (SITA), was India's first comprehensive legal campaign to combat prostitution. The act's goal was to end the trafficking of girls and women. Prostitution is not a crime, however organized forms of prostitution are forbidden by the law. Law is a set of regulations supported by penalties; it penalizes those who disobey the law or When there is a violation of the law, law is used. 

Similar to this, there won't be any penalties if someone operates their business inside the bounds of the law. Under the provisions of this Act, the central government may authorize police officers to make arrests without a warrant in any location where the commission of this offense is suspected, as well as to intervene on behalf of someone who has been coerced into a certain profession. On May 19, the Supreme Court of India (SC) issued guidelines for recognizing prostitution as a profession and highlighting the fact that sex workers have the same rights to dignity and the constitution as other professionals. (9)

There has been a lot of discussion in India about legalizing prostitutes. Prohibition of prostitution is a legislative measure which undertaken will provide the individuals basic right. The Individuals' basic rights which are enshrined in the Indian constitution are equally applicable to the persons who are involved in commercial sex work. Safeguarding their rights not only provides them protection from many forms of exploitation but also entitled them to provide social security measures in the form of education health by government. In addition to being at risk for STDs, sex workers are also entitled to protection because even after contracting HIV/AIDS, they were still subjected to harassment, violence, and other forms of abuse.(10)

ILO on “the provision of sexual services has assumed the dimensions of a full-blown commercial sector, one that provides direct and indirect employment to millions of workers and contributes substantially to national incomes throughout the region”.(11) 

In India, the term "Devadasi" was used to denote a person who was known as a Deva's servant, such as a priest. Devadasis were regarded holy in addition to working in temples. Devadasis were deities' wives. They were expected to look after the temples and perform rites. They also participated in the performance of different classical art forms. Because of these factors, they enjoyed a high social rank. 

The BHARATPUR: Khakranagla village in Rajasthan, which is only about 200 kilometers from Delhi, also practices this habit. Despite this, the village is a miniature of rural India, complete with dilapidated structures, an abandoned primary school, and no access to healthcare. Only two years ago was electricity installed in this area. However, there are other things that set it apart, such the fact that it is home to many Bedia caste families, who have a long history of being linked to prostitution. In that community, a survey and interviews revealed that this had become the norm and that everyone there had given their complete consent for the same behavior.(12) 

According to a Havocscope assessment, there are roughly 13,828,700 people engaged in prostitution worldwide (Havocscope 2015). In the last 150 years, several researchers have worked to shed light on the causes of prostitution (Benjamin et al. 1964; Bullough et al. 1978).Hughes (2004) identifies four reasons why women become prostitutes. 

        1. The primary cause is male sexual desire. 

        2. The second reason is that women are being recruited by various agencies such as brothel                     operators, traffickers, pimps, and organized crime groups. .  

        3. The third major cause is the failure of government policy and the legalization of prostitution.         4. Hughes cites societal influence as the fourth reason why women become prostitutes. He goes             into great detail on the media's essential role in promoting prostitution as a means of getting             quick money. 

While dealing with such a situation, it became clear that many women, without any pressure or coercion, engage in the business of sex service. The same ILO report states that some prostitutes freely choose to engage in sex work, others are under pressure due to extreme poverty and difficult economic conditions, while still others are pushed or duped into prostitution. It highlights that while some prostitutes work in environments resembling bondage or slavery and get exceptionally high levels of exploitation and abuse, others work in fairly decent pay and working conditions. In order to ensure that adults who voluntarily chose sex work are entitled to the same labor rights and benefits as other workers, policy concerns for these individuals should center on enhancing their working conditions and social protection. "The priority should be the rescue, rehabilitation, and reintegration of those who have been subjected to coercion, deception, or violence." 

RECENT DEVELOPMENT: 

The rights of sex workers and trafficked individuals in India are governed by the Suppression of Immoral Traffic in Women and Girls Act (1956), which was revised in 1986 as the Immoral Traffic Prevention Act. While sex workers (sometimes referred to as "prostitutes") are allowed to legally practice their trade in private settings, they are not allowed to solicit clients in public places, provide hotel services, or engage in pimping or ringings of sex workers. 

The Indian Constitution's Article 21 protects sex workers and their children in the same ways that it protects any other profession or person, according to the “Supreme Court's panel of Justices L Nageswara Rao, BR Gavai, and AS Bopanna. Article 21, often known as the Right to Life, declares that no one may be deprived of their life or personal freedom unless they do so in compliance with the legal requirements. "It need not be gain said that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India," said the SC order”. (13) 

A prostitute is a person who engages in prostitution, which is defined as the sexual exploitation or abuse of a female for financial gain under a modification to the Immoral Traffic (Prevention) Act, 1956 (ITPA). This law, also referred to as SITA, was adopted in 1956. 

The original act was amended by the Immoral Traffic (Prevention) Act of 1986. According to this law, prostitutes who are observed soliciting business or seducing others are to be detained. Additionally, call girls are not allowed to provide their phone numbers to the general public. They risk fines and a 6-month prison sentence if they are discovered. 

Clients who interact with a sex worker within 200 yards of a public area risk fines and a prison sentence of up to three months. A person who is caught having sex with a juvenile might spend up to ten years in prison. Also guilty are pimps and other individuals who support themselves through prostitution. In fact, it might be illegal for an adult man to live with a prostitute. If one cannot demonstrate their innocence, they may receive a term of 2-4 years in prison. 

SITA (1956), later changed to ITPA (1986), is a noteworthy law since its preamble states that its purpose was to implement the Trafficking Convention. An Act to Legislate for the Suppression of Immoral Commerce in Women and Girls, adopted by Parliament in the Seventh Year of the Republic of  India, in Compliance with the International Convention Signed in New York on the 9th Day of May 1950, is how the law is referred to in the preamble. 

The ITPA's constitutionality was called into question in the landmark case of “The State of Uttar Pradesh vs. Kaushalya” (14). According to the circumstances in this case, a couple of the prostitutes were requested to leave their post in order to maintain the decorum of Kanpur. 

According to the Allahabad High Court, “Section 20 of the Act Breaches Article 14 and Article 19(1) clauses (d) and (e) of the Indian Constitution, which are fundamental rights. In the end, since they are considered to be people and not a different category, they are also entitled to the fundamental rights”. 

The Act was found to be constitutionally valid since there was a distinct difference between a prostitute and a person causing a disturbance. The Act also promotes the goal of upholding morals and social order. By saving fallen women and girls and providing them with opportunity for rehabilitation and becoming respectable members of society, the legislation is focused on achieving a public goal. 

Prostitution is effectively criminalized by the law, which also grants the federal government the authority to establish specialized tribunals to hear cases involving infractions of the law. If the same factors were considered in multiple countries, the picture would be considerably different. The issue of legalizing prostitution in India has drawn a lot of attention. Regulation is considered to be the best course of action because there is minimal chance that prostitution will be made illegal. 

Many countries have regulated and legalized prostitution, including Canada, France, Germany, Denmark, Wales, and others. In Germany, where brothels are allowed to advertise and provide jobs through HR agencies, the profession is really both legal and taxed. Germany recently enacted regulations mandating a permit for all prostitution enterprises as well as a prostitute registration certificate in order to protect prostitutes(15) .  

The stronger the legislation, the less misuse of the authority's power granted in the name of moral protection or other will be permitted, and those who suffer from the violation of fundamental human rights will be entitled to protection. A system where the sex industry is managed and the protections of the sex workers are taken into consideration tends to be less harmful to the sex workers because stronger law enforcement protects the system against abuse, exploitation, and unnecessary use of power. Along with the possibility of catching deadly STDs like HIV and AIDS, these sex workers frequently experience police brutality, a drop in pay, harassment, etc. The Supreme Court advocated for the legalization of prostitution in 2009. (16)   

CONCLUSION: 

In the context of an equality that just pretends to have meaning but truly intends to, it is something that becomes rather challenging. We have seen that trade has been involved since ancient times, yet they still face many problems, one of which could be that society does not accept them as they are.

Decriminalizing sex work and making it legal will provide a better life for sexworkers by providing higher earnings, health security, and protection. Not only that, but if society comes together and supports them, it will be a progressive move that will lead to the abolishment of many societal problems such as child prostitution, rape, and so on. 

Sex-trade is a highly visible reality in our country, and by recognizing it as a legitimate business or giving validity to the business even though completely but with certain norms and safeguards, all parties involved can gain. A more comprehensive regulatory framework and adopting a holistic approach will play an important role in benefiting the society at large

REFERANCE:

1. Budhadev karmaskar v. State of west Bengal & ors., 2022 SCC OnLine SC 704.

2. Barb Brents, Ph.D. | People University of Nevada, Las Vegashttps://www.unlv.edu/people/barb-brents, (Last visited sep.12,2023). 

3. Supra nt. 1.

4. Id. 

5. Supreme Court of India, 38381.pdf (sci.gov.in), (last visited, sep.11,2023). 

6. Volume 29, Issue 1, Saurabh Kirpal (Ed.), Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen, January 24, 2022. 

7. Live law,37388200752035996order19-may-2022-419223.pdf (livelaw.in), last visited Aug.26,2023.

8. Supra nt. 1.

9. Ms. Amritha VS, Dr. Jobi Babu2, Dr. KM Ashifa, Legalization of Sex Work in India: Perspectives on Changes in Socio-Economic and Living Conditions of Female Sex Workersfile:///C:/Users/20bal/Downloads/Jobi- +Article1.pdf.(last Visited,4th October,2023).

10. The ILO Recommendation on HIV and AIDS in the Workplace, 2010 (No. 200), applies to all workers. The ILO promotes the inclusion of female and male sex workers and their customers in HIV responses at the international national, sectoral, and workplace levels in conjunction with constituents and partners. The ILO empathically focuses on HIV. The ILO aims to improve HIV prevention for sex workers' clients by assisting in the formulation and implementation of HIV workplace policies and programs in critical sectors. In India, the ILO is collaborating with trade unions to deliver HIV programs. laborers in the construction sector. Trade Unions collaborate closely with one another. NGOs delivering HIV/AIDS programs in collaboration with Around construction sites, sex workers. 

11. International Labour Organization, https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_007999/lang--en/index.htm,(last visited Aug.28, 2023). 

12. India Today,https://www.indiatoday.in/magazine/society-and-the-arts/story/20131028-sex-trade-and-traditionfamily-business-bedia-families-768084-1999-11-29.

13. In 2020, the National Human Rights Commission (NHRC) recognized sex workers as informal workers.

14. The State of Uttar Pradesh vs Kaushaliya and Others, AIR 1964 SC 416. 

15. Yashi Verma, Legalization of Prostitution In India, https://www.legalserviceindia.com/legal/article-3392- legalization-of-prostitution-in-india.html#:~:text=This%20act%20was%20passed%20in,carry%20their%20business%20in%20public.(last visited Sept 12,2023).

16. Decriminalizing the Sex Trade: The Case for Legalizing Prostitution By Ashish.mishra26 / https://mail.legalserviceindia.com/legal/article-12654-decriminalizing-the-sex-trade-the-casefor-legalizing-prostitution.html.(Last visited, sep.12, 2023.