AN ANALYSIS OF LEGAL FRAME WORK OF HUMAN TRAFFICKING, SEX WORK AND THE CONSTITUTIONAL MANDATE OF DIGNITY IN INDIA.

INTRODUCTION

1. Trafficking in persons, a serious violation of human rights, continues to be a pervasive problem in India and the trafficking of women and girls represents its most despicable form.The legal debate on the matter is multifaceted as it balances the twin demands of combating organised crime and safeguarding the basic rights of the people, including those of people in sex work.
2. The basic legislation on the subject has been the Immoral Traffic (Prevention) Act, 1956, for decades.Its use has unfortunately sometimes resulted in trafficking victims being treated as sex workers and vice versa, leading to the persecution and marginalisation of sex workers.
3. This paper aims at analysing the complex legal context of sex trafficking and sex work in India.It will analyse the legislative provisions of the Immoral Traffic (Prevention) Act, 1956 and fit them into the constitutional framework with the wide interpretation given to the Right to Life and Personal Liberty under Article 21 of the Constitution[1].
4. This analysis centres on the Supreme Court of India’s landmark judgment in Budhadev Karmaskar v State of West Bengal[2], which has significantly changed the narrative by recognizing the constitutional rights and dignity of sex workers, rather than only a carceral approach.

THE STATUTORY FRAMEWORK: THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956.

The Immoral Traffic (Prevention) Act, 1956 (ITPA) [3]was passed in order to comply with the International Convention signed at New York in 1950 for the prevention of immoral traffic. The overall aim of the Act is not to outlaw prostitution per se, but to discourage or eradicate the commercialization of vice and the trafficking of people. The law is specifically aimed at the exploitative elements of sex work.

Key provisions include:

• Section 3: Caps the number of brothels that can be kept or managed.
• Section 4: Makes it a crime to live off the earnings of another’s prostitution.
• Section 5: Punishes procurement, inducement or taking of a person for prostitution purposes.
• Section 6: Makes it an offence to detain a person in any place where prostitution is carried on.No prostitution or solicitation in or near public places.

If you read the ITPA carefully, you will see that it does not condemn someone for choosing to do sex work, as an adult. However, what it is focused on is the network behind it – the traffickers, the brothel keepers and the pimps, who benefit from vulnerable people. In reality, however, the enforcement of the ITPA has been criticised as shaming sex workers, who are often subject to police harassment, violence and arbitrary arrest during raids. This enforcement void has continued to create a vicious cycle of victimisation without differentiating between coerced and consented participation in the trade.

THE CONSTITUTIONAL SHEILD: ARTICLE 21 AND RIGHT TO DIGNIFIED LIFE

Article 21 of the Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”[4]. Decades of progressive interpretation by the Supreme Court has given the term “life” a deeper meaning than just the life of animals – it is the right to live with human dignity. This principle, which was laid down in important cases, is the basis for the protection of the rights of all persons, including those who are on the fringes of society. The right to dignity provides that everyone has the right to the essentials and freedoms that enable everyone to live a meaningful life. This includes but is not limited to the right to exercise a profession, the right to privacy, the right to be free from exploitation and abuse. The right applies to everyone and is not abolished by occupation. Hence as an Indian citizen every sex worker has full right to enjoy the protection of Article 21. It is a constitutional provision that they are treated with respect and their fundamental rights are not limited even by law enforcement or society as a whole.

A PARADIGM SHIFT: THE SUPREME COURTS JUDGEMENT IN BUDHADEV KARMASKAR V. STATE OF WEST BENGAL

Budhadev Karmaskar’s case against the State of West Bengal[5] has been combed by judges as a new breakthrough in sex workers’ rights.The case had begun as a vicious assault on a sex worker in 1999, but the Supreme Court widened its focus to encompass the systemic problems and human rights abuses that plague sex workers.The Court, in an order dated 19th May 2022, invoked its extraordinary powers under Article 142 of the Constitution to make a cascade of landmark directions to protect the rights and dignity of sex workers, given the silence of the law and the plight of sex workers.

The Court left no doubt that “sex workers have the right to dignity and equal protection under the law. It pointed out that the ITPA was important, but at the same time there was important harmonisation with constitutional principles that it noted that running a brothel is illegal but voluntary sex work by an adult is not. The main directions given by the Court are as follows:

1. Equal Protection of Law: Sex workers have the right to equal protection of the law.If a sex worker is an adult and is doing what they want to do, the police should not intervene, and should not take any criminal action.
2. Rights of Victims: Any sex worker who is a victim of sexual assault should be given all facilities of a sexual assault victim including immediate medico-legal assistance.
3. Police attitude towards sex workers is “brutal and violent”: The Court observed.It called for the police and other law enforcement agencies to be sensitive to the rights of sex workers and treat them with dignity and refrain from abuse, including verbal and physical abuse.
4. No Separation of Mother and Child: A child should not be separated from the mother on the basis that she is a sex worker.It should not be assumed that a minor is a victim of trafficking in the event that he or she is discovered living in a brothel.
5. Media Responsibility: Media to refrain from identifying sex workers during arrest, raid and rescue operations to ensure their privacy.
6. Release from Protective Homes: The Court asked the state governments to consider the cases of adult women who were forcibly detained in ITPA Protective Homes and set a timeline to free them.

The Constitution guarantees a dignified life for each and every person in this country, irrespective of their profession, it is Article 21.

This decision is a major shift in thinking from rehabilitation of sex workers to the categorisation of sex workers as rights-bearing citizens. When the Court characterizes the work as a “profession,” it has made a giant leap in removing the stigma from sex work and in recognizing the right of sex workers to earn a living, within the limits of the law.

CONCLUSION

1. Sex trafficking and sex work in India is on a crucial stage of the legal framework[6]. The Immoral Traffic (Prevention) Act, 1956, contains the legislative provisions for reducing exploitation and trafficking, but the implementation of the Act has been beset by a variety of problems that have exacerbated the marginalisation of sex workers further.
2. The Supreme Court in Budhadev Karmaskar v. State of West Bengal has spread the constitutional values of dignity, equality and liberty in legal discourse.The judgment fills a void and clarifies a conflict between criminal trafficking and consensual adult sex work while bringing the responsibility for safeguarding the fundamental rights of all persons, including sex workers, on to the shoulders of the State and its agencies.
3. The directions of the Court are not advisory but are law until there is a comprehensive legislation on the issue.Sincere application of these directions by police and the eventual enactment of these principles into a comprehensive law is the future of a just and humane sex work legal regime.
4. The Budhadev Karmaskar judgment is a reminder of how a Constitution has a transformative power and is a reminder that the promise of a dignified life is applicable to all individuals, even those most vulnerable and forgotten.

Reference(S):

[1] The Constitution of India.

[2] Budhadev Karmaskar v. State of West Bengal, Criminal Appeal No. 135 of 2010 (Supreme Court of India).

[3] The Immoral Traffic (Prevention) Act, 1956, No. 104 of 1956.

[4] UNAIDS, “UNAIDS welcomes India’s Supreme Court order that the constitutional right of sex workers to life, liberty and dignity must be respected” (17 June 2022). 

[5] Order dated 19 May 2022 in Budhadev Karmaskar v. State of West Bengal & Ors., Criminal Appeal No. 135 of 2010.

[6] Gupta, Sarthak. “India’s Supreme Court rules to protect sex workers amid COVID pandemic.” OpenGlobalRights, 2022.