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RECOGNISING THE HUMAN RIGHTS OF SEX WORKERS IN INDIA: THEIR RIGHTS AND ISSUES



INTRODUCTION


“A sex worker deserves a billion times more respect, than the mystical fraudsters of the society.”[1]


Human Rights violation is faced by sex workers on a severe stage, be it socially, economically, politically or legally. They are discriminated and exploited. It is a high time for us to understand that they too are humans and deserve the same kind of dignity as we do.


In India, prostitution is not a new age business and is considered, in the world, as one of the oldest professions. If we focus on India, then it all started with Devdasi system in 6th century which later customised this profession. If we take the human rights of sex workers into consideration, then this discussion came into light in the ending years of 20th century. In the ending years of 20th century, there was a growing acknowledgement of the human rights’ significance.


It was December of 1974 when a committee on ‘Status of Women in India’ submitted a report to the Indian Government. This report also included the visibility of women in prostitution, along with the victims of rape, dowry, domestic violence and similar cases.


The practice of prostitution is referred as ‘sex work’ and various collection of unison work in order to protect such individuals from harassment, through the way of law. Sex work is not considered as a work. It’s treated as dirty and corrupt way of life which threatens befoul to the innocent public. Those involved in this, are constantly abused if they seek good healthcare, or are exploited by police and governmental officers. Their children face harassment in schools and other places, etc.


The expression ‘prostitution’ is used for the term ‘sex work’. ‘Sex work’ is used where adults exchange or sell sex for money or other relevant services. Under various International agreements and conventions, sex workers are entitled to be treated equally. Still, they face such abuse.


PROTECTION OF HUMAN RIGHTS OF SEX WORKERS IN INDIA


In the present time, Immoral Trafficking Act, 1956 is the statute that governs and controls prostitution in India. But this fact also can’t be denied that India, by its law, has been unsuccessful when the matter of protecting the rights of people involved in prostitution comes. The said law aims to cease the trafficking of people in India and corresponds for the sex workers’ removal from their residences in the name of public interest. It’s not a surprising fact in India that this law which was introduced for sex workers is constantly used against them. With its use, they are harassed and exploited by law enforcement officers.


This act is also supported by IPC’s Section 370- 373. They criminalise such practices and sex workers can be evicted from their dwellings anytime. This act provides a framework for police and NGOs to conduct raid and rescue operations. Magistrates have the authority to close brothels and expel persons from such premises[2], irrespective of their consent and age[3]. This legislation is misused and police arbitrarily arrest sex workers, releasing them only after they are paid with money by the sex workers[4].


The Apex Court of India has delivered that such individuals are entitled to the right to life and should be provided protection that is guaranteed to every citizen. The State was directed to provide recommendations on “rehabilitation of those sex workers who want to leave sex work of their violation and to provide favorable conditions for those sex workers who want to continue working as sex workers”, as per Article 21[5] of Indian Constitution. After the Second World War, remarkable changes occurred due to the International Consensus on Human Rights. It has been agreed by all that there are certain basic human rights that cannot be denied to any human being. The United Nations, on the name of human rights, further adopted International Covenant on “Civil and Political Rights” and, International Covenant on Social, Economic and Cultural Rights.


Apart from the mentioned statue; there is “Indian Constitution” that protects all the rights of an individual (Rights that are enshrined in the Indian Constitution are mentioned under Article 14, 15, 21, 23, 24 and 32. Article 14 states that there should be equality amongst all the people and in that way the sex workers must not be discriminated. Article 15 says that individuals will not be discriminated on the basis sex, caste, class, religion and other such attributes. Article 21 focuses on the idea of right to life and personal liberty and no person should be denied from it. Article 23 prohibits trafficking. These fundamental rights, under the Indian constitution, are inalienable and are strictly enforceable. Some quasi- judicial bodies, which have been established by the legislation are also involved in this process of justice in cases of Human Rights violation. Examples include: NHRC, NCPCR, NCW, etc. These bodies function promptly inspect from the grass root level of the case.


INTERNATIONAL LEGAL AND POLICY CONTEXTS


There are two relevant areas of International Law & Policy that influence legal environment of sex workers in the Asia and the Pacific are:


- International Human Right Laws & Policies of International bodies for the protection of human right of key populations effected by HIV


- Regional Agreements and International Laws relevant to prevention of human trafficking


UN TRAFFICKING CONVENTION


The UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1949) addresses trafficking with the aim of prostitution and sexual exploitation. Other forms of forced labour are, here, not included. For UN agencies, tis convention is now only of historical interest and is not relevant anymore. But, for States existing in Asia Pacific region, it is still relevant, like in India. This convention guides the State to punish the people for exploitation a person, be it with consent or without consent. States are also directed to prohibit such acts.


SAARC TRAFFICKING CONVENTION


The South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 promotes the cooperation among the member States in order to deal with protection, prevention, and punishment of trafficking for the purpose of prostitution. The SAARC Convention lays the following definitions:


‘Prostitution’ means the sexual exploitation of persons for commercial purposes;


‘Trafficking’ means moving, selling or buying of women & children for prostitution, within and outside a country, for monetary or other related considerations, with or without the consent of the person subjected to trafficking;


‘Persons subjected to trafficking’ means women and children victimised or forced into prostitution by the traffickers by deception, threat, coercion, kidnapping, sale, fraudulent marriage, child marriage, or any other unlawful means.


It should be noted that in contradiction to the Trafficking Protocol, SAARC Convention addresses the trafficking of only women in respect to prostitution.

We should understand that sex workers are also human beings and they too deserve to live with same dignity as other humans do. One doesn’t know that under which circumstances one had to come in this profession, maybe it was poverty, trafficking, or anything else. Whatsoever it be, they are humans. Hence, they are also entitled to Human Rights which Indian Constitution guarantees us.


References: -


[1]Abhijit Naskar, goodreads.com/quotes, goodreads, https://www.goodreads.com/quotes/8504369-a-sex-worker-deserves-a-billion-times-more-respect-than [2] Section 18, 20, Immoral Traffic Prevention Act, Lexis Nexis (1956)

[3] Section 13, 15, the Immoral Traffic Prevention Act, Lexis Nexis (1956)

[4] J. D'Cunha, The Legalization of Prostitution: A Sociological Inquiry into the Laws Relating to Prostitution in India and the West (Bangalore, India: Wordmakers, 1991), WorldCat, (1991), https://www.worldcat.org/title/legalization-of-prostitution-a-sociological-inquiry-into-the-laws-relating-to-prostitution-in-india-and-the-west/oclc/477900111 [5]BudhadevKarmaskar v. State of West Bengal, 10, S.C.R. 577, (MANU/SC/0971/2011)


[6]https://www.manupatrafast.com/pers/Personalized.aspx


[7] https://www.amnesty.org/en/latest/news/2015/08/sex-workers-rights-are-human-rights/


[8]https://www.unaids.org/en/resources/presscentre/featurestories/2017/june/20170602_sexwork



Author ~ Chetna Priyam

4th semester, B.A.LLB

ICFAI University, Dehradun.