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A New Dimension of Right to life And Personal Liberty: Sex Workers Right To Live With Dignity

"All human beings are born free and equal in dignity and rights."- Eleanor Roosevelt.

Introduction.
Part III of the Indian constitution guarantees fundamental rights, which are meant to preserve and protect people, Article 21 of the Indian constitution provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law."The right to life is the most fundamental right of citizens and non-citizens from the alien country.
In the case of Maneka Gandhi v. Union of India, the apex court elaborated that the right to life includes the right to live with human dignity.

In the case of Francis Coralie Mullin v. Administrator, the Union Territory of Delhi extended the meaning of the right to life beyond the protection of limb or faculty to include the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and also the right to carry on such functions and activities as constituting the bare minimum expression of the human-self.

In the case of Kharak Singh vs. State of Uttar Pradesh, the honorable Apex Court held that the term life here used something more is meant than mere animal existence. It means the right to live with human dignity.

Who are Sex workers
The adoption of the term 'sex worker' in the 1970s. Sex workers are adults who receive money or other forms of compensation in exchange for consensual sexual services, either regularly or occasionally.

A sex worker can be female, male, or transgender.

There are over 800,000 sex workers in India and the unofficial number is even higher & it is also income-generating activity.

The International Labour Organization (ILO) estimates that sex workers support between five and eight other people with their earnings. Sex workers also contribute to the economy. In four countries surveyed, ILO found that the sex industry provides between 2 and 14 percent of gross domestic product. In Thailand, for example, the sex industry generated about US$6.4 billion in 2015, a figure which accounted for 10 percent of Thailand's GDP.

What are the reasons for women to engage in sex work?
  • Poverty
  • Lack of education and low socioeconomic status
  • Family reasons and lack of social support
  • Family tradition
  • Deception by known people or Forced sex
  • Deception by unknown people.

Is prostitution legal in India
  • Per se prostitution is legal in India but not regulated, some acts of prostitution are addressed as illegal
  • Juvenile prostitution
  • Soliciting prostitution services in public places.
  • Carrying out prostitution activities in hotels.
  • Indulging in prostitution by arranging for a sex worker.
  • Arrangement of a sexual act with a customer.

Landmark case
Budhadev Karmaskar v. State of West Bengal
In the present case, a sex worker was brutal murder by Budhadev Karmaskar the incident happened on 17th September 1999, The deceased Chayay Rani Pal alias Buri was living in a red light area and was a resident of Jogen Dutta Lane in Calcutta. She was a sex worker.

The appellant Budhadev kicked her with fists and legs, and she fell to the floor Then appellant caught her by her hair and banged her head against the floor and the wall several times which left the victim severely injured, the was profusely bleeding through her nose and mouth the victim was taken The victim was brought to the hospital where she was found 'dead on arrival.

The Supreme Court bench consisting of Justices of L Nageswara Rao, BR Gavai, and AS Bopanna dismissed the appeal and observed that the right to life under Article 21 includes 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. So court direct the Central and State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India.

The Apex Court had constituted a Panel for sex workers in 2011. They were broadly three aspects that the Panel had identified:

The terms of reference made to the panel are:
  1. Prevention of trafficking,
  2. Rehabilitation of sex workers who wish to leave sex work, and
  3. Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault.

Sex workers are entitled to equal protection from the law. Criminal law must apply equally in all cases, based on 'age' and 'consent'. 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.

the court directed that the media should not publish the picture or the identity while reporting the rescue operation or raid

Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalized or harassed, or victimized.

The law enforcement agencies should be sensitized to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens.
Police should treat all sex workers with dignity and should abuse them both verbally and physically.

The central and state government through legal service authorities should conduct a workshop to educate sex workers about their rights.

no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.

Measures that sex workers employ for their health and safety should neither as offense nor evidence.

The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing, and implementing any policy or program for the sex workers or formulating any change/reform in the laws relating to sex work.

The State Governments may be directed to survey all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.

the court also directed that Aadhar Cards shall be issued to sex workers based on a proforma certificate which is issued by UIDAI and submitted by the Gazetted Officer at NACO or the Project Director of the State Aids Control Society, along with the Aadhar enrolment form/application.

The court directed these orders under article 142 of the Indian constitution which provides a unique power to the supreme court to do complete justice between the parties, court can use this power where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case.

Conclusion.
Sex work or prostitution is not new in India its an old profession and with changing society Stigma and discrimination against sex workers have broad negative implications, including creating an environment conducive to social exclusion, violence, and HIV/STIs. Labeling sex workers as criminals due to these kinds of a stigma Sex worker in India face many problems in day to day like physical abuse, sexual violence, health issues, exploitation, and police harassment. The present order of the apex court significantly helps the sex workers to lead a better life in society and it also ensures that all are equal under the law.

Reference:
  • Aarthi Pai, Status of sex workers in India, https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/Ind/INT_CEDAW_NGO_Ind_17395_E.pdf.
  • Niranjan Saggurti, et al. "Harsh realities: Reasons for women's involvement in sex work in India", Journal of AIDS and HIV Research, Vol. 3(9), https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.818.1838&rep=rep1&type=pdf.
  • Sohini Chowdhury, Police Should Not Abuse Sex Workers, Media Should Not Publish Their Pictures During Raid & Rescue Operations : Supreme Court Issues Directions https://www.livelaw.in/top-stories/supreme-court-guidelines-sex-workers-article-21-rehabilitation-prevention-of-trafficking-200041.
    Explained: The Supreme Court Order On Sex Work, How It Changes Things, And Laws On Sex Work, https://www.outlookindia.com/national/explained-the-supreme-court-order-on-sex-workers-laws-on-prostitution-how-sc-order-changes-things-news-198865

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