The Supreme Court Has Recognised Sex Work As A “Profession” In India
In a significant move, the Supreme Court (SC) has recognised sex work as a “profession”, noting that police officials “should neither interfere nor take criminal action against adult and consenting sex workers”. Also, the SC directed and directed the UIDAI to provide them with Aadhaar cards even if are unable to furnish any residence proof on the basis of "proforma certificates" issued by a Gazetted Officer at NACO or the State Health Department certifying their particulars. A three-judge Bench led by Justice L. Nageswara Rao directed in an order which was passed after invoking special powers under Article 142 of the Constitution.
While issuing directions to the State Governments and Union Territories to strictly comply with some of the recommendations of its Panel for Sex Workers with respect to conditions conducive to sex workers to live with dignity in accordance with Article 21 of the Constitution, the Supreme Court, on May 19, took note of the fact that the Union Government had expressed reservations with the other recommendations of the panel in this regard. A Bench directed the Union Government to respond to the other recommendations made by the Panel within a period of six weeks. The Panel which was bestowed with the mandate to make recommendations on issues pertaining to prevention of trafficking, rehabilitation of sex workers who want to quit sex work and the conditions conducive for sex workers to live with dignity in accordance with Article 21 of the Constitution of India, after consulting with all the stakeholders, had submitted a detailed report on the terms of reference. The Central Government had accepted some of its recommendations which the Apex Court has now directed the States to adopt. However, it had raised objection to some.
The court ordered the police to not discriminate against sex workers who lodge a criminal complaint, especially if the offence committed against them is of a sexual nature. Sex workers who are victims of sexual assault should be provided every facility including immediate medico-legal care. The court said media should take “utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities”. The bench directed the Press Council of India to issue appropriate guidelines for the media. Voyeurism is a criminal offence, the court reminded. Measures taken by sex workers, like the use of condom, should not be construed by the police as evidence of their “offence”. The Centre and States must involve sex workers or their representatives to reform laws, the court suggested. The court also suggested that sex workers who are rescued and produced before a magistrate be sent to correctional homes for no less than two-three years.
The Centre — represented by additional solicitor general (ASG) Jayant Sud — objected to accepting the recommendations of the expert committee in toto. The committee has recommended that when any adult sex worker participates with consent, the police must refrain from interfering or taking any criminal action. Another recommendation said that during a raid on any brothel, sex workers concerned should not be arrested or victimised as voluntary sex work is not illegal as compared to running a brothel which is unlawful. The Centre also objected to another recommendation by the committee which said that “no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade”. It was due to these reservations of the Centre that the committee report could not be incorporated into a proposed legislation — likely to be brought before Parliament — aimed at rehabilitation of sex workers.
The court told the states/UTs to act in strict compliance of its order as the bare necessities of life such as adequate nutrition, clothing and shelter and also the right to carry on such functions and activities constitute the bare minimum expression of the human self. “This basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children,” the order said.