On the night of 17th September 1999, Budhadev Karmaskar entered a brothel on Jogen Dutta Lane in Calcutta. He then proceeded to violently attack and kill a sex worker. A trial Court convicted him under Section 302 of IPC to life imprisonment and the High Court of Calcutta upheld this conviction. When this case of murder eventually reached the Supreme Court as Budhadev Karmaskar v State of West Bengal in 2011, the Apex Court not only dismissed Karmaskar’s appeal against the conviction, but invoked Article 21 of the Constitution to assert that sex workers too had a right to a life of dignity. In furtherance of this argument, the Court issued a string of directions to the State and Central governments that sought to rehabilitate sex workers across the country.
While Karmaskar’s fate was decided, the case has remained running for more than a decade now and has proved to be instrumental at various junctures in providing relief to the living and working conditions of sex workers in India. The main anchor for this has been Article 21 that guarantees the protection of an individual’s life and personal liberty, which the Courts have expanded to also mean the right to a dignified life.
The latest addition to this case has been the 19th May 2022 ruling by a Supreme Court bench comprising of Justices L. Nageswar Rao, B.R. Gavai and A.S. Bopanna that gave certain directions on the prevention of trafficking, rehabilitation of sex workers who wish to leave sex work and establishing conditions conducive for sex workers who wish to continue working as sex workers to live with dignity in accordance with Article 21. These directions were based on the recommendations of a Court constituted panel in 2011. The recommendations were meant to be a part of the Union Government’s Draft Bill on sex work, but since receiving the recommendations in 2016 the government has dragged its feet in bringing forward a legislation. The Supreme Court directions are supposed to be a temporary relief until proper legislation is brought in place.
While most headlines have lauded the Court order for recognizing sex work as a profession, it has to be emphasized that voluntary sex work in India has always been legal. What the Supreme Court directions notably does is to foreground the dignity, autonomy and consent of the sex worker in discussions on sex work and thereby set an important precedent for any future legislation. In its very first direction, the Court in no uncertain terms states that sex workers are entitled to equal protection of the law and warns the police against taking any criminal action or interfering in cases of consensual adult sex work. The Court recognized the very real violence, both physical and verbal, faced by sex workers at the hands of the police. It makes note on the need for sensitization of the police force and other law enforcement agencies on the rights of sex workers. Crucially, the Court pointed out that 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.