Despite the constitutional mandate enshrined in the Constitution of India guaranteeing equal rights to all individuals within its jurisdiction, systemic apathy towards certain marginalised sections of society often results in their continued subjugation and exploitation. Fundamental rights, though constitutionally assured, frequently necessitate reaffirmation through judicial intervention to ensure their effective enforcement.

One such domain of contentious legal and social discourse is prostitution. The subject has long been at the heart of legislative and ethical debates, with some advocating for its legalisation and state regulation to safeguard the rights, health and welfare of sex workers, while others contend that such a framework would exacerbate gender disparities and perpetuate exploitative structures. Critics argue that policy efforts should instead focus on eradicating the socio-economic determinants that propel individuals into sex work, such as poverty, lack of education and systemic disenfranchisement.

Advertisement

Article 14 of the Constitution of India unequivocally guarantees equality before the law, stipulating that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,” thereby prohibiting discrimination on grounds of religion, race, caste, sex or place of birth. Nevertheless, entrenched societal biases and hierarchical structures continue to undermine the gender equality guaranteed under this provision, impinging upon the dignity and autonomy of women who voluntarily engage in sex work as a means of livelihood.

A pivotal judicial pronouncement reinforcing the dignity and rights of sex workers was rendered in Buddhadev Karmakar v. State of West Bengal. In this case, wherein the appellant had brutally murdered a sex worker, the Hon’ble Supreme Court, through a suo moto action, expansively interpreted Article 21 of the Constitution, thereby reaffirming the Right to Life with dignity for sex workers and their dependents. Recognising sex work as a legitimate profession, the apex court in a recent ruling held: “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.” A three-judge bench led by Justice L Nageswara Rao categorically emphasised that sex workers possess the same entitlement to a dignified existence as guaranteed by Article 21 of the Constitution.

While voluntary sex work remains decriminalised in India, the legal framework explicitly criminalises trafficking for sexual exploitation. The Bharatiya Nyaya Sanhita (BNS) and the Immoral Trafficking Prevention Act (ITPA) criminalise ancillary activities such as pimping, solicitation, exploitation and leasing property for sex work.

However, the prevailing socio-cultural milieu remains far from ideal. Sex workers and their dependents frequently endure severe ostracisation, systemic discrimination and institutional neglect, impinging upon their fundamental rights. The prejudices meted out to these children result in their social alienation, depriving them of equitable access to education, healthcare and employment opportunities. Notably, studies indicate that a substantial proportion of children in such environments fall prey to substance abuse or are coerced into the very profession that entrapped their progenitors.

The Directive Principles of State Policy, enshrined in Article 39(e) of the Constitution, obligate the State to protect children from occupations and working conditions that are detrimental to their health and development. Additionally, Article 39(f) mandates the State to ensure that children are afforded the conditions necessary for a dignified and healthy existence, shielding them from moral and material abandonment.

Recognising the imperative for statutory safeguards, the Juvenile Justice (Care and Protection of Children) Act, 2015, was enacted to address the welfare of children in conflict with the law and those in need of care and protection. The Act provides for the establishment of Child Welfare Committees (CWCs) to oversee the rehabilitation and reintegration of abandoned and vulnerable children. Under Sections 30 and 31, children in distress must be entrusted to competent authorities or designated child welfare officers. Furthermore, under Section 35, a parent or guardian facing insurmountable social stigmatisation may voluntarily place their child under the guardianship of the Welfare Committee. Section 39 prescribes comprehensive measures to ensure the holistic rehabilitation of such children.

The rehabilitation of children born to sex workers was a subject of judicial scrutiny in Gaurav Jain v. Union of India, wherein the Supreme Court held that segregating these children in separate institutions was counterproductive, as it would further perpetuate their social exclusion. However, the Court underscored the necessity of protective measures to insulate them from environments fraught with exploitation and abuse. The ruling mandated that the State, in collaboration with non-governmental organisations (NGOs), undertake proactive interventions to facilitate the rehabilitation of sex workers and their offspring, ensuring their access to quality education, vocational training and financial independence.

The National Commission for the Protection of Child Rights (NCPCR) has highlighted grave findings regarding the challenges faced by the children of sex workers. Empirical studies underscore that these children are often reluctant to integrate with individuals outside their community due to the stigma attached to their background. Devoid of effective educational and rehabilitative support, they remain vulnerable to intergenerational entrapment within the sex trade. The NCPCR has thus recommended the implementation of high-quality educational initiatives and structured rehabilitation programmes to prevent their coercion into sex work. Moreover, it advocates the provision of secure residential facilities to safeguard their well-being and ensure their reintegration into mainstream society.

Amra Padatik celebrates International Sex Workers’ Rights Day

International Sex Workers’ Rights Day, observed annually on 3 March, serves as a platform to advocate for the rights and well-being of sex workers worldwide. The origins of this day trace back to 2001, when more than 25,000 sex workers convened in Kolkata for a festival, despite opposition from prohibitionist groups that sought to obstruct the event by pressuring the government to revoke its permit. Organised by the Durbar Mahila Samanwaya Committee, this gathering became a significant moment in the global movement for sex workers’ rights. Since then, sex worker organisations across the world have commemorated 3 March as International Sex Workers’ Rights Day, reinforcing the call for dignity, decriminalisation and justice.

Non-governmental organisations such as New Light, operating in Kalighat’s red-light district, and Amra Padatik, based in Sonagachi—Asia’s largest red-light area—are dedicated to the welfare of sex workers’ children. Their efforts focus on providing access to quality education, healthcare and emotional support. Amra Padatik, which currently has a membership of around 1,700, operates educational and recreational centres across various red-light districts in West Bengal, including two in Sonagachi, as well as centres in Jorabagan, Kalighat, Kidderpore, Kalna, Durgapur, Sheoraphuli and Titagarh.

Amra Padatik organised a webinar on 3 March to mark International Sex Workers’ Rights Day. The event, themed “Decriminalisation and Dignity: Ensuring Human Rights for Sex Workers” underscored the ongoing battle for sex workers’ rights despite the landmark 2022 Supreme Court ruling affirming their legal protections.

The webinar addressed the pervasive stigma, discrimination and legal hurdles that sex workers continue to face, reiterating the urgent need for decriminalisation. Amra Padatik emphasised that the empowerment and justice of sex workers become more tangible when their children stand in solidarity with them. In pursuit of this vision, the organisation spearheaded this significant initiative.

A heartfelt tribute was dedicated to the late Dr Smarajit Jana, a stalwart advocate for sex workers’ rights. Dr Jana was a pioneering public health expert and a staunch advocate for the rights and welfare of sex workers in India. He played a crucial role in empowering sex workers by promoting their access to healthcare, legal rights and social dignity. His groundbreaking work in HIV/AIDS prevention and intervention transformed public health policies, particularly among marginalised communities. Dr Jana’s efforts stressed a rights-based approach, ensuring that sex workers were not only recipients of healthcare but also active participants in decision-making processes.

As part of the programme, 20 sex workers from West Bengal were honoured for their invaluable contributions to the movement. The webinar convened representatives from 30 sex worker organisations across India to deliberate on pressing challenges and strategise for meaningful change. More than 50 individuals, including eminent personalities from diverse fields and representatives from national and international organisations, actively participated in the discussion.

Puja Roy, president of Amra Padatik, delivered the opening speech, shedding light on the adverse impact of the Immoral Traffic (Prevention) Act (ITPA) on the children of sex workers. Shashi Panja, minister for women and child development and social welfare, West Bengal, lauded Amra Padatik for its efforts. She underscored the necessity of protection, education and empowerment for the children of sex workers. Rupsa Mallick, a longstanding ally of Amra Padatik, spoke on the dignity of sex workers, advocating for a greater focus on health, livelihood and fundamental human rights. Meena Saraswathi Seshu, general secretary of Sangram, emphasised the urgent need for decriminalisation, asserting that legal recognition and protection are imperative for the safety and dignity of sex workers.

Bharati Dey, a mentor within the sex work community, addressed critical questions surrounding criminalisation, including:

  1. How are sex workers criminalised?

  2. Why does society treat sex work as a crime?

  3. Who is responsible for criminalising sex workers?

  4. Who benefits from this criminalisation?

  5. How does criminalisation personally impact sex workers?

The discussions underlined how criminalisation not only strips sex workers of their fundamental rights but also exacerbates their vulnerabilities, limiting access to essential healthcare, legal recourse and social security. The webinar concluded with a collective call to action, advocating for comprehensive reforms to ensure sex workers’ dignity, safety and legal recognition.

While the legal framework surrounding sex work and the rights of sex workers has undergone progressive judicial interpretation, systemic and societal impediments continue to hinder the realisation of their constitutional rights. Holistic policy interventions, coupled with unwavering judicial oversight and societal sensitisation, remain indispensable in upholding the principles of justice, dignity and equality for one of the most marginalised sections of society.

The writer is a lawyer, and a journalist on the staff of The Statesman