Prostitution has always been seen as some kind of dark mark on the society. People associated with the sector are looked at with disgust and prejudice, thought to be contaminating the otherwise pure and good-willed people of the good community.
Till date, there is a lot of unawareness and misinformation spread around the area, the biggest one being that prostitution is illegal in India.
The recent Supreme Court statements on the profession and what it could mean for the sector are certainly worth looking into and perhaps could shed some light on this area along with also help to better the lives of those in it.
What Did The Supreme Court Say?
On May 19th 2022 a panel consisting of Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna said that voluntary sex workers who are adult and consenting towards it deserve to live with dignity and equal protection under the law as given to the rest of Indian citizens.
The Court stated that “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.”
The three-judge Bench invoked special powers given from Article 142 of the Constitution and said that “Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of ‘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.”
This is a significant statement made by the Supreme Court that outrightly acknowledges voluntary sex work as a “profession” and also ordered the police that they should not be interfering or taking any criminal action against such workers.
The Bench ordered the police while running a raid on a brothel should not “arrested or penalised or harassed or victimised” sex workers “since voluntary sex work is not illegal and only running the brothel is unlawful”.
Furthermore, the Bench also ordered regarding sex workers and their children stating “Basic protection of human decency and dignity extends to sex workers and their children.”
The Bench also gave orders on what to be done if a child is found in a brothel or living with sex workers. It asked that the child should not be assumed to have been trafficked and that “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.”
Prostitution Illegal Or Legal In India?
There is a lot of grey area in this topic that may confuse the common person when trying to understand more about it.
Technically, as per sources, prostitution itself is not illegal in India, but things are not as easy as that. There are several laws around it that make sex work easy in the country. A lot of sub-laws that criminalise various acts and can put prostitutes in danger.
As per the Indian Penal Code (IPC) there are few activities surrounding the prostitution sector that are illegal. These include:
a) Soliciting prostitution services in public places.
b) Carrying out prostitution activities in hotels.
c) Indulging in prostitution by arranging for a sex worker.
d) Arrangement of a sexual act with a customer.
The law says that you cannot charge someone for prostitution. But you can charge someone for soliciting prostitutes or for providing a prostitute or seducing someone to be a client. Now here comes the grey area, the law is very confusing from this point since you kind of cannot actually practice the profession without soliciting it.
So when a woman is practicing prostitution then it is expected that she will either solicit her services on her own or have someone solicit herself. If she goes through some other person like a pimp, then the pimp’s activities are illegal but the prostitute’s activities are completely legal. Here the separation occurs.
But if she is doing it herself, then that is where the grey area comes in. Sex workers have been given protection in the law for years now, there have been several judgments that state sex workers have the liberty to use their bodies how they want. So no one can impose a restriction on that, however, since she is dealing on her as a lone person, then definitely she has to solicit her profession.
So this is where the grey area comes in and this is what is taken advantage of.
So technically a prostitute who is working herself, not through a pimp, if she solicits her profession, then the act of soliciting would be criminal while the act of prostitution would not be illegal.
For example, if a sex worker is found gaining a client rather than engaging in the act then that would be illegal. But if she is found engaging in the act then they won’t really know how she got the client or how it happened, then it completely legal she can go ahead with it. No one is going to probe into that but if she is found while finding a client then that is where the problem lies.
However, if the Centre accepts the Court’s orders then it could mean a big shift in the sex worker profession. Things like equal legal protection, the ability to register a complaint or offence to the police by sex workers, and protection from arrest during a brother raid could also become possible.
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