In India, sex work has been recognised as a 鈥減rofession鈥� by the Supreme Court of India in the landmark case, which affirmed that sex workers are entitled to a dignified life under of the Indian Constitution. Despite acknowledging sex work as a legitimate profession, human rights violations against sex workers in India persist. According to released by the National Crime Record Bureau, more than 6,000 sex workers, out of an estimated 800,000 sex workers in India, have experienced physical violence and other forms of abuse. This concerning reality is further exacerbated by the contradictions and ambiguities in the legal framework, primarily stemming from the Immoral Trafficking (Prevention) Act of 1986 (ITPA). The ITPA conflates sex work with trafficking, creating legal uncertainty and undermining the rights and dignity of the sex workers. Consequently, sex workers face formidable challenges from systemic marginalization and stigma attached to their profession. It is imperative to not only recognize the inherent dignity of sex workers but also address the root causes of their marginalization to ensure their well-being and uphold their rights within the legal framework.
From Ambiguity to Advocacy: Addressing Legal Loopholes
Sex work is not illegal in India. However, various related activities, such as operating brothels, soliciting in public and living on earnings from prostitution are criminalized and penalized under the (鈥淚TPA鈥� or the 鈥淎ct鈥�). The primary objective of the is to prevent and suppress human trafficking for prostitution by penalizing outward manifestations of prostitution. Additionally, the Act also demonstrates a degree of tolerance towards prostitution under certain circumstances. This dual approach creates complexities and ambiguity in the legal landscape, leading to significant violations of human rights and sexual rights of sex workers. For instance, a study by the Indian reported approximately 14,000 women sex workers are arrested annually under the ITPA despite sex work being a recognised profession. Furthermore, the grants police officers legal powers that the principles of criminal law. According to (鈥淏NSS鈥�), police officers cannot arrest women late at night or without female officers present, ensuring respectful treatment and protecting women鈥檚 rights and dignity. However, police are empowered to arrest sex workers without an arrest warrant, in the absence of female police officers during arrests and there are no restrictions on late-night arrests. Such provisions of the Act infringe upon fundamental rights guaranteed by the Constitution of India, including the right to equality (), the right to non-discrimination (), and the right to life and personal liberty (). Additionally, the Supreme Court of India affirmed in the remarkable case, that grants the magistrate the authority to compel sex workers to leave their professional place for public interest and prevent their entrance without written magistrate permission. The Court characterized the magistrate鈥檚 power in this context as a measure to combat the 鈥榞rowing evil of sex work,鈥� which ultimately undermines the rights of sex workers in their legitimate profession.
Moreover, the relating to offences concerning morality and decency are ambiguous, providing police officers with the opportunity to violate the rights of sex workers. The Supreme Court has condemned the towards sex workers. The Supreme Court has also that existing laws be enforced within a framework based on consent, ensuring that individuals who voluntarily engage in sex work should not be penalized, harassed, or victimized unless under coercion. The Supreme Court took a significant step by issuing guidelines to the Central and State governments to recognise and protect the rights of sex workers in the remarkable case, , (also known as the People鈥檚 Union for Civil Liberties Case). Subsequently, in the , the Supreme Court issued ten guidelines based on a rights-based approach to empower and regulate the sex work profession until the legislature fills the vacuum to address the issue. At the international level, the recognizes the inherent dignity of all people, irrespective of profession. The mandates that States must ensure that individuals have the right to fair employment under just and favourable working conditions. Furthermore, every person possesses rights relating to their privacy, autonomy, security, liberty and assembly, gender equality, freedom from violence and unjust detention, and their liberty to choose their employment. Additionally, the implemented obligations to challenge gender stereotypes and acknowledge the positive contributions of women in society under .
Way Forward
Despite legislative and judicial endeavours, the absence of comprehensive legislation addressing the exploitation and victimization of sex workers in India leaves them among the most marginalized members of society. Enduring societal ostracization, moral censure, and legal vulnerability, these individuals are left without adequate protection. Thus, there arises an urgent need for novel legislative frameworks that not only uphold and fortify the rights of sex workers but also catalyze a profound social and legal transformation. Moreover, these individuals need access to robust social protection mechanisms and equitable opportunities to avail themselves of a comprehensive spectrum of social, economic, and health-related entitlements. Concerted efforts must be required to confront the barriers that confine sex workers to society鈥檚 peripheries, and to ensure their rightful inclusion and empowerment within the fabric of legal and social frameworks. However, achieving a delicate equilibrium between safeguarding the rights of sex workers and thwarting the scourge of prostitution trafficking, as envisaged by the ITPA necessitates a nuanced strategy. Upholding dignity and autonomy for sex workers must be coupled with robust measures to prevent exploitation and coercion in the sex industry
Manvitha B. S. is pursuing a BA LLB Hons at Rajiv Gandhi National University of Law. She is interested in Human Rights, Criminal Law and International Law. She is a member of the Law Development and Research Network, and aspires to bring about positive change in the realm of human rights and create a more equitable and inclusive society.