SEX WORK IS LEGAL IN INDIA (भारत में सेक्स वर्क कानूनी है)

LEGALISATION OF SEX WORK IN INDIA

                                      INTRODUCTION

 Recently, different aspects in respect of some professions can be a spot in India, especially regarding Sex work. Sex work also works like other professions but it is different from a social perspective because Indian culture never recognized sex as a thing, which should be public. Sex workers have also their fundamental rights like us and Article 21 provides freedom to live with dignity and the right to life. There are many interpretations of the Supreme Court regarding article 21 of the Indian constitution, which stated that article 21 provides to all the citizens right to life with dignity and to earn a livelihood to live. There is the freedom to do any profession Under Article 19 of the Indian constitution, which is not denied under any law of India. Supreme Court held that voluntary sex is not illegal. This line can be construed by some as announcing voluntary sex work done by sex workers as legal in India. Supreme Court has noticed by PIL that the behavior of the police towards sex workers is often brutal and violent, a class whose rights are not recognized. The police and other law enforcement organizations should be made aware of the rights of sex workers, who have the same basic human rights and other rights as all citizens protected by the Constitution. Police should treat all sex workers with decency and should not verbally or physically assault them.

           JUDGEMENTS & DIRECTIONS

 In 2011, Budhadev Karmaskar v State of West Bengal – Supreme Court held that “Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution” “that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.” IN ADDITION, direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. In addition, ensures the right to life and livelihood. Calcutta High Court under ITPA stated that no sex worker exploited for commercial sex can be tried as an accused unless there is substantial evidence that she was a ‘co-conspirator’ in the crime. Recently, Madras High Court held in a judgement that running a brothel can be illegal but sex work is not and sex workers should not be arrested during a raid on a brothel. Bombay High Court, in 2020 Kajal Mukesh Singh & Ors. v. the State of Maharashtra, while directing the immediate release of three sex workers from a correction home, stated, “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.” The Act only punishes the sexual exploitation or abuse of a person for commercial purposes. The Supreme Court requested the Press Council of India to establish rules for the media to ensure that the identity of sex workers is kept hidden during a raid, rescue operation, or arrest. Whether the sex worker is the accused or the victim, such caution must be used; any images that might lead to the disclosure of sex workers' names, as a result, must not be published, the court said. The Supreme Court directed state and union territory governments to follow the recommendations of its Panel on Sex Workers. The Panel was established by an order issued by the Supreme Court on July 19, 2011. After engaging stakeholders, the Panel found "conditions favorable to sex workers living with dignity in conformity with the provisions of Article 21 of the Indian Constitution" and produced a thorough report. In Francis Coralie Mullin versus Administrator, Union Territory of Delhi (1981), The Supreme Court expanded the scope of Article 21's right to life beyond the narrow confines of "protection of limb or faculty," including the right to live with human dignity. Furthermore, "because voluntary sex work is not criminal and only maintaining a brothel is prohibited," sex workers must not be abused, harassed, jailed, or fined in the event of a raid. The court also noted the police's "frequently cruel and aggressive" attitude toward sex workers, noting that they, as well as other law enforcement organizations, must be made aware of the fundamental human rights and constitutional rights that sex workers, like all other citizens, are entitled to. Police should not physically or verbally assault sex workers, inflict violence on them, or compel them to engage in sexual activities. Sex workers should be handled with respect. The Supreme Court stated that UIDAI must issue Aadhaar Card to sex workers based on a proforma certificate submitted by the National Aids Control Organization. Recently, a three-judge bench comprising Justice L. Nageshwar Rao issued six guidelines 

 1. Sex workers are entitled to equal protection of their rights and they are entitled to the right to dignity in the eyes of law 

2. If sex workers are an adult can do it with their consent 

 3. Police have been directed not to intervene unnecessary 

 4. Article 21 provides the right to live dignified life

 5. Sex workers should not be arrested or harassed during police operations 

6. Children of sex workers cannot be separated from their mothers. The Supreme court held that if any minor was found to be living with a sex worker it is not right to assume the child was trafficked. NHRC recognized sex workers as informal workers. 

 PROVISIONS RELATED TO PENALTY AND PUNISHMENTS 

• Press Council of India to issue guidelines for the media so that they take utmost care in concealing the identities of the sex workers at the time of a raid, rescue operation or arrest. Such care must be extended whether the sex worker is the accused or the victim; any photos that could lead to the revelation of the identities of sex workers, therefore, must not be published, the court directed.

 • To further prohibit the publication of photos of sex workers and their clients under the pretense of reporting a raid or rescue operation, Section 354C of the Indian Penal Code, 1860, which criminalizes voyeurism, must be “strictly enforced against the electronic media” 

• The court directed the Union Government, through the National Legal Services Authority, and the state governments, through State Legal Services Authorities and District Legal Services Authorities, to organize educational workshops for sex workers on their rights, the legality of sex work, legal prohibitions and permissions, and police rights and obligations.

 • Another guideline is that they should be made aware of the availability of the court system so that they can assert their rights when necessary and prevent police and traffickers from harassing them.

 • Immediate medical assistance must be provided to a sex worker who is a victim of sexual assault. Other assistance by Section 357C of the Code of Criminal Procedure, 1973 read with the Guidelines and Protocols: Medico-legal Care for Survivor/Victims of Sexual Violence must also be provided. 

Forms of Sexual Violence include:

 • Coerced/forced sex in marriage or living in relationships or dating relationships. 

 • Rape by strangers.

 • Systematic rape during armed conflict, sexual slavery.

 • Unwanted sexual advances or sexual harassment. 

 • Sexual abuse of children.

 • Sexual abuse of people with mental and physical disabilities.

 • Forced prostitution and trafficking for the purpose of sexual exploitation. 

 • Child and forced marriage. 

 • Denial of the right to use contraception or to adopt other measures to protect against STIs.

 • Forced abortion and forced sterilization.

 • Female genital cutting.

 • Inspections for virginity.

 • Forced exposure to pornography. 

 • Forcibly disrobing and parading naked any person.

       SEX WORKERS' RIGHTS MUST BE PROTECTED 

1. Sex workers are still subjected to criminalization, assault, discrimination, and other types of human rights abuse. 

2. Intercourse workers—female, male, and transgender adults who have consensual sex in return for money or products on a regular or irregular basis—are among the people being left behind in the HIV response. 

3. Many of the human rights issues, vulnerabilities, and limitations that sex workers encounter in getting HIV care are the result of criminalization and the restrictive laws, rules, and practices that they are subjected to. 

4. In India, sex worker groups are collaborating with police and the community to prevent sex worker violence and to build health and social services for themselves and their families. 

 WHY IS THE PROHIBITION OF SEX WORK A HUMAN RIGHTS ISSUE?

 • Human Rights Watch has consistently found in research from various countries that criminalization makes sex workers more vulnerable to violence, including rape, assault, and murder, by attackers who see sex workers as easy targets because they are stigmatized and unlikely to receive help from the police. Criminalization may also push sex workers to work in dangerous places to evade the police.

 • Nobody can separate sex from human existence. Sex is a basic human urge to relieve pain and stress. We must criminalize sex work to reduce the rape and sexual harassment of women in society.

 • Sex is not a new phenomenon in our culture; it can be traced back to prehistoric times. It is documented in ancient texts.