Budhadev Karmaskar V. State Of West Bengal: A Brutum Fulmen?

Firstly we need to understand the difference between sex work and prostitution. Generally speaking, prostitution is a gendered, sexualized, and racialized labor system, one that typically involves the exchange of sexual services for money, goods, or other benefits whereas sex work encompasses different types of intimate arrangements that blur the boundaries between erotic, emotional, and economic labor.^[1] Prostitution as defined under the Sec 2 (f) of The Immoral Traffic (Prevention) Act, 1956 is "the sexual exploitation or abuse of persons for commercial purpose". The said legislation only penalizes for keeping brothels^[2], living on the earnings of prostitution^[3] and procuring or taking or inducing for the sake of prostitution^[4] . So it is the sexual exploitation that is criminalized and not 'sex work' which is consensually done by adults. Unfortunately neither the law nor policy could demarcate this difference between prostitution and sex work creating the entire ruckus. So what needs to be made clear is that one should not conflate trafficking with sex work, when it is known that trafficking occurs not only for sex work, and that all sex work is not trafficking. In this context it is noteworthy to mention the term Prostitution and sex work (PPS) used by SANGRAM and VAMP ,the Maharashtra based sex work organization to differentiate devadasis, housewives who sell sex, women who work in brothels, streetwalkers and male sex workers.^[5] The Standing Committee has also recommended to re-look the definition of 'prostitution' to include the multiple identities existing in this labour force.^[6]

Realizing that the legislature is hibernating in this subject, the Apex Court performed judicial activism and issued directions recently the in Budhadev Karmaskar's case^[7]. The court issued the following directions along with mandating issuance of the Aadhar card without insisting to produce residence proof. This inclusivity to avail social benefits definitely will make the life of sex workers better. Some of the directions given by the Apex court are:

1. Sex workers who are a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973.
2. Whenever there is a raid on any brothel, the sex workers concerned should not be arrested or penalised or harassed or victimized.
3. The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.
4. Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
5. No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade and also access to free legal aid.

Apart from these directions the court also expressed its concern regarding the police harassment and institutionalized ostracization faced in a routine manner in the name of brothel raids. In this regard, the court issued direction saying that the police and other law enforcement agencies should be sensitized to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. The Apex court in 2011 in the same matter had asserted that "Sex workers are also human beings and no one has a right to assault or murder them. They are also entitled to a life of dignity in view of Article 21 of the Constitution. ^[8]

Despite these moves from the judiciary to become a messiah for sex workers why are we still skeptical? Because we are aware that we are discussing this topic with a society that considers sex work to be a fate worse than death!^[9] We are discussing this topic in a society where caste dynamics cannot be ignored in sex work, we are discussing this topic in a society were freedom from gender-stereotyped notions about women's chastity and roles and responsibilities within a hetero-normative and patriarchal family is still prevalent. So, unless we resolve this issue seeing through an intersectional lens that addresses class, caste, gender, sexual orientation, gender identity, disability, religion, ethnicity, health status, age and marital status discrimination cannot be removed, no matter how benevolent the law and judgments are.^[10]

In its report titled "Sex work in India" submitted to The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in June 2014 by Centre for Advocacy on Stigma and Marginalisation(CASAM),Sampada Grameen Mahila Sanstha (SANGRAM), Mahila Sarvangeen Utkarsh Mandal (MASUM), Veshya Anyay Mukti Parishad (VAMP) and sex workers collective certain relevant questions were asked for the consideration of the CEDAW Committee . Those were as follows:^[11]

1. Is discrimination faced by sex workers on a daily basis, not in violation to Article 1 of the CEDAW?

2. Since the State perpetuates violations and takes no cognizance of violence perpetuated by non-State actors, is India not violating its obligation to respect and protect the rights of women sex workers?

3. What measures has India taken to prevent violation, humiliation, dispossession and disenfranchisement of sex workers during raids and rescue missions?

4. What measures have been taken to ensure that sex workers are not alienated from their children, homes, assets, livelihood options and health care services?

5. Why do raids lead to forcible detention of adult sex workers who do not wish to leave sex work?

6. What measures has India taken to ensure women sex workers' access to justice?

7. What measures has India taken to ensure the principle of due diligence of prevention and investigation of discrimination, prosecution of perpetrators and compensation of victims / survivors?

8. What measures has India taken to address the impunity of State as well as non-State actors in instances of violence and discrimination against sex workers?

9. What measures is India taking to remove historical discriminations in terms of putting in measures of substantive equality?

10. Why has India reported only on Article 6 of the CEDAW?

Above questions definitely needs an assertive answer to ensure sex workers are no more invisible or less humans. So it is high time legislature break its silence on how it plans to curb the menace of sexual trafficking and the allied transnational crimes at the same time affording conducive environment for sex workers to practice their profession prescribing to health and safety measures. But one cannot forget that such legislations, policies and court verdicts are being given to a society with a highly depraved mind, yet to realize the words of Gangubhai who said "You lose your dignity once, it is lost forever, we sell our dignity every night, yet it doesn't seem to run out!"

The author is a former Asst Public Prosecutor, Govt of NCT, Delhi. Views are personal

[1] Jenifer Musto, " Prostitution and sex work" available at https://www.researchgate.net/publication/304183740_Prostitution_and_Sex_Work (last accessed on June 11^th 2022)