Explained: The Supreme Court Order On Sex Work, How It Changes Things, And Laws On Sex Work

Noting that the attitude of the police towards sex workers is often brutal and violent, the Supreme Court of India earlier this month said that sex workers should be treated with decency and dignity, and the police should not interfere or take any criminal action when an adult engages in consensual sex work. 

In an order on 19 May, the Supreme Court also asked the Centre to clarify its stand on recommendations made by a panel formed by the apex court in 2011, which looked into the prevention of human trafficking and questions of rehabilitation as well as the dignity of sex workers. The Centre in 2016 told the SC that the panel's recommentations were incorporated in a draft legislation. However, no law has since been made.

In the absence of such a law, the Supreme Court said that it's directives would be valid until a law on the subject is made.

Here we explain what the Supreme Court said, what are the existing laws on sex work, and what's the implication of the apex court's directives. 

What did the SC say?

The Supreme Court bench of Justices of L Nageswara Rao, BR Gavai, and AS Bopanna said sex workers and their children are covered by the protections of the Article 21 of the Constitution of India like every other profession and person.

The Article 21 — dubbed the Right to Life — says: No person shall be deprived of his life or personal liberty except according to procedure established by law.

"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," said the SC order, as per a copy published by Live Law.

The authorities, when dealing with cases concerning trafficking, have to be mindful of this Constitutional protection, said the SC order.

It further said, "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 penalised or harassed or victimised.

"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."

What are existing laws on sex work?

The sex work in India is governed primarily by the Immoral Traffic (Prevention) Act, 1956 (ITPA), but Indian Penal Code (IPC) and Juvenile Justice Act also have provisions dealing with prostitution and trafficking in India, as per an article published by the Columbia University's Institute for the Study of Human Rights (ISHR).

Private prostitution is not illegal in India, but soliciting it, doing it publicly, and owning a brothel are illegal. Despites the illegality of public prostitution, an India Today story noted that enforcement is lax as places like GB Road are operational.

The India Today story added that IPC makes the following illegal:

• Soliciting prostitution services publicly
• Prostitution activities in hotels
• Prostitution by arranging for a sex worker
• Arranging a sexual act with a customer

It adds that prostitutes are to be arrested if they are found soliciting their services or seducing others. "Furthermore, call girls are prohibited from making their phone numbers public. They can be punished for up to six months along with penalties if found doing so," adds the India Today story.

What changes with SC order?

The Supreme Court order sets limits on police actions regarding sex workers and puts sex workers and their children at par with rest of the people.

Consensual adult sex work and the mere presence of sex workers in a brothel would not warrant an arrest or police interference, as per the SC order. This is important as the police are known for harassing sex workers.

The law makes sex workers living in Red Light Areas vulnerable to police action who while enforcing anti-trafficking laws often cross their limits by taking action against sex workers and their clients who are engaged in consensual and private sex work, noted the ISHR article cited above. This would need to stop as per the SC guidelines.

Moreover, the SC stated that when a sex worker comes forward with a complaint, it would be treated as any other complaint, and she would not be treated as an offender but as a complainant. 

The SC stated, "Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance." 

This assistance will be in line with Section 357C of the Code of Criminal Procedure and guidelines and protocols for survivor and victims of sexual violence issued by the Union health ministry.

The apex court noted issues faced by sex workers, saying "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."

The SC order also prohibits forcible separation of children of sex workers. The order stated, "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."