The recognition of sex work as a 'profession' entitled to the right to dignity under Article 21 of the Constitution
Through a decision in 2022 that has come to be regarded as a landmark, the Supreme Court significantly advanced the case for the constitutional recognition of sex workers and their right to dignity, equality and protection under Article 21 of the Constitution, bringing them on par with everyone else, instead of being treated as a special category for which (unfairly) special treatment was usually reserved.
The case is known as the Budhadev Karmaskar v. State of West Bengal and Others case.
Sequence of events
September 1999: Sex worker Chhaya Rani Pal is murdered in a red-light area of Kolkata by Budhadev Karmaskar after a dispute over sexual services.
Early 2000s: Karmaskar is convicted by the Trial court convicts under Section 302 of the Indian Penal Code and sentenced to life imprisonment.
2009: The decision is upheld by the Calcutta High Court.
2010: Criminal appeal filed before the Supreme Court of India.
2011: Supreme Court upholds the conviction. The judgment along with the facts of the case can be accessed here.
The Supreme Court expands the case and converts it to a Public Interest Litigation (PIL) to examine the conditions and rights of sex workers for which a panel/committee including legal experts, government representatives, and sex worker collectives was constituted.
2016-2021: Series of interim hearings and reports from the committee.
2022: Supreme Court issues landmark directions recognizing rights of sex workers and directing the police and governments to respect their dignity.
Supreme Court directions
Extracts from the Supreme Court order in Criminal Appeal No(s). 135/2010, passed on May 19, 2022:
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.
Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers about their rights…
Expert Opinions
Commenting on the case, the Journal of Legal Research and Juridical Sciences observed:
This judgment gave a way to uplift the life of sex workers in the whole of India but still, there is social stigma and discrimination among the societies that should not be forgotten.
IP and Legal Filings recognized the judgment as landmark but also noted:
But very much in contrast to the liberal mood of this judgment, the harsh reality is different. Sex workers all over the country still suffer from violence, discrimination, and illegal detentions. A 2019 report to the Committee on the Elimination of Discrimination Against Women (CEDAW) found that sex workers in India are abused by clients, the police, and society at large. The report documented cases of physical abuse, coercion, and police brutality, and sex workers had very limited access to justice and protection.
These cases illuminate the growing chasm between legal decisions and their practical execution, prompting a vital inquiry: What value does legal recognition hold if it fails to manifest in genuine protection in the real world?”
The Centre for Law and Policy Research remarked:
…voluntary sex work was legal and what was illegal was the running of a brothel. Hence, it warned the police against penalising or harassing a sex worker found in such brothels. Additionally, it calls on the police to act impartially on receiving any complaint from a sex worker. It also makes a specific note on sex workers who are victims of sexual violence and directed the police to make all forms of support, particularly medical assistance, to be made available to such survivors.
While the discourse on sex work has for long been dominated by the debates on decriminalization and legalization, the latest Supreme Court ruling provides a more immediate respite to those engaged in sex work by centering the human and constitutional rights of the sex worker. By stressing the role of law enforcement agencies in ensuring their protection, the order also puts the accountability of safeguarding the rights of sex workers on the State.
Legal significance
The case and judgment are considered to be landmark for several reasons.
They reaffirm that the right to life includes dignity and livelihood, regardless of the nature of a person’s occupation, thereby expanding the definition and interpretation of Article 21 of the Constitution.
It has, once again, in perhaps much more unambiguous terms, stated that sex work itself, done by consenting adults, is not illegal; only activities such as running brothels, trafficking, and pimping are criminal offences under the Immoral Traffic (Prevention) Act. Hence, sex workers should not be assumed to be a part of these establishments and offences.
Acknowledgement that many women enter sex work because of structural constraints rather than free choice and that society and the state have a responsibility towards giving them a chance to live with dignity outside this profession.
Governments must ensure access to identity documents, welfare schemes, and social security in order to promote assimilation into society and a life of dignity.
Though not specifically a part of this judgment, Indian Courts have emphasized the need to use the term “sex workers” in place of “prostitutes” which they believe will lead to a better understanding and reduce stigmatization.
Conclusion
The Supreme Court of India’s decision in Budhadev Karmaskar v. State of West Bengal represents a significant development in the constitutional recognition of the rights of sex workers in India.
In its 2022 directions, the Court clarified that voluntary sex work by consenting adults is not illegal and that sex workers are entitled to equal protection of the law. The judgment thus shifts the legal discourse from the hitherto moralistic approach toward a rights-based framework grounded in dignity, equality, and constitutional protections.
While the judgment is not a sweeping legalization of sex work, it establishes a rights-based framework requiring the state to protect sex workers from violence, discrimination, and exploitation.