Sex Work Has Always Been Legal in India, New SC Order Doesn't Change Law

The Supreme Court's order does include valuable guidelines to protect right to life and dignity of sex workers.

Sex workers hold a torchlight rally demanding work rights ahead of International Women’s Day at Sonagachhi in Kolkata on 3 March 2019.

(Photo: AP)  

There is a lot to welcome in the Supreme Court's order issuing guidelines to ensure that sex workers are treated with dignity and respect.

The apex court directed that till Parliament passes a law dealing with these issues – the Centre has been claiming since 2016 that it is working on a Bill for this – its guidelines will be in force as law like the Vishaka Guidelines on sexual harassment used to be.

Following the Supreme Court's summer vacations, this set of guidelines could even be added to, with further recommendations to be considered including:

1. Stopping the police from filing criminal cases where there is valid consent

2. Not harassing sex workers found working at brothels

3. Not separating children of sex workers from their mothers, and

4. Conducting consultations with sex workers and their representative organisations before any law or policy is passed

The order will go some way towards tackling police harassment of sex workers, by directing sensitisation of police forces, directing them to treat sex workers with dignity and take down criminal complaints by them, and ensuring that measures taken by sex workers for their protection are not construed as offences under the law.

However, while no doubt a laudable order, reports in the media make it seem as though the Supreme Court through this order has recognised sex work as a legal profession, and held that it is not an illegal activity.

"Supreme Court recognises sex work as a ‘profession’," was how The Hindu and The Telegraph headlined the news. "Voluntary Sex Work 'Is Not Illegal', Recommends Supreme Court Panel," said NDTV.

However, in its order, the Supreme Court was not actually laying down a new legal position. Its guidelines will have to be followed by state authorities and the police, but there has been no new recognition of sex work as a profession.

Yes, the SC in its order says

"It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India."

However, this is not some new act of recognition, because voluntary sex work has always been legal in India, and, subject to certain restrictions, a legal profession.

Aren't There Criminal Offences Relating to Sex Work?

As recognised by the panel set up by the Supreme Court back in 2011, whose recommendations have now been adopted in part, the police's treatment of sex workers leaves a lot to be desired.

"It has been noticed that the attitude of the police to sex workers is often brutal and violent," the panel had observed. "It is as if they are a class whose rights are not recognised."

The police harass and mistreat sex workers, abusing and extorting even those who have not broken the law. Which is why the panel made recommendations for ensuring that the police do not file cases against sex workers for voluntary sexual acts, and should not be harassed for making purchases necessary for their profession.

The Indian Penal Code only includes provisions for dealing with child prostitution in Sections 372 and 373 (as does the POCSO Act) or human trafficking (Sections 366A, 366B, and 370A). In neither of these laws is the person involved in sex work criminalised.

What the cops end up using to target sex workers is instead a separate law, the Immoral Trafficking (Prevention) Act of 1956.

Even this law does not make voluntary sex work in itself illegal.

However, it does criminalise running brothels, living off the earnings of a sex worker, or soliciting sex work publicly. Carrying out sex work within 200 feet of a place of public religious worship, educational institution, hostel, hospital, nursing home or other designated area is also punishable under the Act.

The police unfortunately harass sex workers even when they are not in breach of any of the provisions of the Act. They also often arrest sex workers working in a brothel when conducting a raid, even though the law only punishes the person running the brothel or allowing their premises to be used as a brothel.

At the end of the day, though, the profession of sex work is not illegal, so there is no question of the Supreme Court recognising it as a profession in its recent order.

In terms of the perception of the public about sex work, this order may of course help clarify to those who were not aware of the legal position that sex work is not illegal. It is also an important reiteration of the importance of the right to dignity that the Constitution guarantees.

"Needless to say, 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."

One can only hope that when the matter resumes on 27 July this year, the Centre will drop its reservations to the remaining recommendations of the Supreme Court-appointed panel, and those recommendations also become guidelines to prevent misuse of the law to harass sex workers, and give them a voice in future decision-making by governments.