With these words, the Supreme Court on Thursday recognised prostitution as a profession and said and sex workers are entitled to dignity and equal protection under the law.
The three-bench judge comprising Justices L Nageswara Rao, BR Gavai and AS Bopanna gave six directions for safeguarding sex workers’ rights, stating, “Sex workers are entitled to equal protection of the law. 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. It need not be gainsaid that notwithstanding the profession, every individual in this country has the right to a dignified life under Article 21 of the Constitution.”
The apex court said in its order that sex workers should not be arrested, penalised or harassed through raids on brothels because voluntary sex work is not illegal and only running the brothel is unlawful. In addition to that, it also instructed the police to not discriminate against sex workers and called for sensitisation towards sex workers.
In its order, the three-bench judge also said the media should take “utmost care to not reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not publish or telecast any photo that would result in disclosure of such identities”.
The apex court added that the directions so passed would hold the field until the time the Union Government comes up with a legislation, reported LiveLaw.
We take a closer look at the history of the profession in India, what the existing laws say and why this order is significant for the nation.
Prostitution in India
It is said that prostitution is the oldest profession in the world.
In India, their presence can be dated back to ancient times with scriptures mentioning the presence of three kinds of women — those who were chaste and devoted to a single man (even if the man had many wives). The second were women who kept away from men and lived as nuns. The third kind were women who had multiple lovers and were attached to no single man.
In later times, such women were considered the wives of a temple deity or a Devdasi, who saw their god in all their lovers. This last kind of women has often been described in modern literature as ancient sex workers or prostitutes or sacred concubines.
In the 1800s, it is reported that the British military established and maintained brothels for its troops to use across India. A report by the BBC states that the girls, many in their early teens from poor, rural Indian families, were recruited and paid directly by the military, which also set their prices.
The British have long gone, but the profession of prostitution continues in the country. While some estimate that there are around 8,00,000 sex workers in India, the actual number could be as high as 20 lakh across the country.
Laws around prostitution in India
While the profession has long been prevalent in India, its legal status has always been under a cloud and many have over the years demanded that it be legalised.
Currently, as per the Indian Penal Code (IPC), prostitution is not in a broad sense illegal, but several activities under prostitution are punishable by law.
As per the Immoral Traffic (Prevention) Act, 1986, sex workers can practice their profession but activities, including pimping and running a brothel are considered a punishable offence.
The law also states any person who makes an earning from prostitution is punished. Additionally, it is illegal to procure, induce, or abduct a person for prostitution.
The law further mentions that the practice cannot take place within a 200-metre radius of any public place. To participate in prostitution lawfully, sex-worker must choose an isolated location.
This clearly puts the legality of profession of prostitution in ambiguity.
Countries that have legalised prostitution
While the legality of sex work is vague in India, until now, other countries across the world have legalised the profession, granting sex workers equal rights and protection.
Across Europe, countries such as Germany, Netherlands, France, Greece have legalised the profession.
In Germany, the profession was legalised in 1927 and there are proper state-run brothels. The workers are provided with health insurance, have to pay taxes and they even receive social benefits like pension.
Netherlands began regulating prostitution in 2000. However, the sex trade was more or less tolerated for decades before. Amsterdam’s, De Wallen, is the largest and most famous red-light district in the city and a famous destination for international sex tourism.
Prostitution has been legal in Switzerland since 1942 and is protected by the Constitution. Typically, sex workers work in a brothel or buy a daily “ticket” to sell sex in designated street areas.
In France, prostitution is legal, but soliciting in public is still outlawed. Pimping is illegal and brothels were outlawed in 1946, right after the War.
Austria is another country which has made prostitution completely legal. Prostitutes are required to register, undergo periodic health examinations, be 19 years of age or older, and pay taxes.
Outside of Europe, there are other countries too that have legalised prostitution. In New Zealand, the profession has been legal since 2003 and the country also has licensed brothels operating under public health and employment laws.
Canada has no law against the exchange of sex for money; it’s pimping or owning a brothel that is the problem
In Brazil, sex work is legal, though pimping is punishable by law. Similarly, It is legal to work in the sex industry in Colombia, though pimping isn’t.
The country of Ecuador has legalised everything related to sex work — one can sell their body, run a brothel with no fear of the law.
Why is Supreme Court’s decision significant?
Sex workers in India face multiple traumas — sexual violence, emotional abuse, and physical assaults from clients.
Their living conditions are deplorable too, congested lanes, small rooms, smelly localities are affecting their health badly because of which problems related to their health are also rising. Diseases like cervical cancer, HIV and STD are increasing as no steps have been taken for their betterment.
They also face debilitating stigma and discrimination that erodes their ability to protect their health and well-being.
In light of their conditions, it appears that the Supreme Court’s decision is a ray of hope for them. With the order, the Supreme Court hopes to reduce the stigma that is attached the profession of prostitution.
The order mandates that the police takes the complaint, sexual or of another nature, of a sex worker seriously. This has long been an issue for sex workers. They allege that their complaints of rape aren’t taken seriously and they are ignored by the police authorities.
Moreover, in many cases, sex workers allege that it is the police that victimises them by arresting them or harassing them. However, the court has directed that this be stopped.
The court has also instructed that any sex worker who is a victim of sexual assault will be given all of the same services as a survivor of sexual assault, including immediate medical attention.
The court’s direction is a step in the right direction in the battle for equality.
With inputs from agencies