Recently, a noteworthy decision was made by the Supreme Court, recognising sex work as a “profession”. Simultaneously, it was observed that those engaged in this profession are entitled to respect and equal protection under the law. The decision was made using the Supreme Court’s discretionary powers, as outlined in Article 142 of the Constitution.
The Discernment of Article 142: The Source of the Supreme Court’s Power
Article 142 is an integral part of the Constitution, as it bestows discretionary power upon the Supreme Court. It states that the Supreme Court, within its jurisdiction, may pass any decree or make such orders as is required for complete justice in any pending cause or matter. This ruling is a clear demonstration of the broad powers encapsulated under Article 142.
National Human Rights Commission Recognition of Sex Workers as Informal Workers
Before the Supreme Court’s judgement, the National Human Rights Commission had acknowledged sex workers as informal workers in 2020, furthering their recognition and protection under the law and reflecting a progression towards equality.
The Core Aspects of the Supreme Court’s Spirit of Justice Encompassed In this Judgement
The Supreme Court’s judgement offered several key highlights. First, it was established that sex workers are entitled to equal protection of criminal law, based on age and consent. Furthermore, the police were instructed to desist from interference when the sex worker involved is a consenting adult.
Secondly, the ruling also focused on the rights of sex workers’ children, stating their separation from their mother strictly on the grounds of her involvement in the sex trade was not justified. Besides, if a minor was found living with sex workers, it should not be automatically assumed that the child was trafficked.
The judgment also emphasised the importance of medical care for sex workers, especially those who have been sexually assaulted. They should be given immediate medico-legal attention and facilities. Lastly, the court pointed out the role of media in ensuring the identities of sex workers are not revealed during law enforcement procedures.
The Legislative Context: Immoral Traffic (Prevention) Act
In India, sex work is governed by the Immoral Traffic (Prevention) Act, initially enacted as the Suppression of Immoral Traffic in Women and Children Act in 1956. Despite certain amendments, it continues to penalise actions such as keeping a brothel or living off the earnings of sex work.
The Justice Verma Commission 2012-13 distinctly recognised the difference between trafficked women and consenting adult women engaged in sex work. Also, a previous Supreme Court case – Budhadev Karmaskar Vs State of West Bengal (2011), underscored that sex workers have a right to dignity.
Recognising The Challenges Faced by Sex Workers
Despite these advancements, sex workers continue to face discrimination and stigma due to their criminalised status. They often endure physical and mental abuse, harassment, and social exclusion. The fight for equal human, health, and labour rights for sex workers continues, as they aren’t categorised like other workers.
Finally, it is high time that sex work is acknowledged as a form of work. Adult individuals involved in sex work deserve to earn, live with dignity, and stay free from violence, exploitation, and discrimination. It is the need of the hour to reconsider sex work from a labour perspective, where their work is recognised, and they are granted basic labour rights.