India's Supreme Court considers regulating prostitution

July 20, 2011

Gyanant Singh reports for India Today, 20 July 2011:

http://indiatoday.intoday.in/site/story/supreme-court-prostitution/1/145521.html

In a move which could lead to the formal regulation of prostitution in ...[india], the Supreme Court is mulling laying down "conditions conducive" for sex workers to carry on their profession with dignity.

A bench presided over by Justice Markandey Katju, which had earlier talked about rehabilitation of sex workers, on Tuesday sought suggestions on formulating conditions which would enable those who wished to "continue working as sex workers" to do so "with dignity." Holding that the right to live with dignity was a constitutional right, the bench constituted a panel comprising senior advocates and NGOs to look into the problems faced by sex workers and give suggestions to protect their fundamental rights.

Prostitution per se is not illegal but sex workers are often harassed in the absence of proper provisions relating to them. The panel has been asked to give suggestions on protecting the rights of sex workers who were not willing to leave the profession.

"These aspects may be studied by the panel and they may make suitable suggestions to the court," the bench said.

To ensure effective implementation of rehabilitation and other schemes, the court directed the Centre and state governments to undertake surveys to ascertain how many sex workers wanted rehabilitation and submit reports to the panel constituted by it. It is estimated that there are over 3 million female commercial sex workers in India.

Though prostitution per se is not illegal, the Immoral Traffic (Prevention) Act, 1956 makes certain acts relating to prostitution an offence. The absence of proper provisions for regulating the profession, however, often paves the way for harassment of sex workers by the police.

Justifying an intervention in the matter, Justice Katju observed that the court was getting into the exercise to enforce the fundamental right to life which had been interpreted in several decisions as the right to live with dignity.

The panel, headed by senior counsel Pradip Ghosh, would comprise senior counsel Jayant Bhushan and NGOs Usha Multipurpose Co-operative Society represented through its president or secretary, Durbar Mahila Samanwaya Committee represented through its president or secretary and Roshni which would be represented by Saima Hasan. The Centre has been directed to provide staff and suitable accommodation to the panel in Delhi.

The court further directed the Centre and state governments to cooperate with the panel and attend meetings fixed by it.

Posting the matter for further consideration on August 2, the court said to begin with, it would focus on Delhi, Kolkata, Chennai and Mumbai, where the problem was more acute and prevalent on a much larger scale.

The court had decided to enforce the right of sex workers after it came across a case of a brutal murder of a prostitute in Kolkata in September 1999.

While upholding a life term for the convict who had killed the prostitute by brutally banging her head against the floor and the wall several times, the court had on February 14 directed the Centre and state governments to prepare schemes for providing vocational training to sex workers and sexually abused women. It had further sought compliance reports from the Centre and state governments.

"Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity in view of Article 21 of the Constitution," Justice Katju had observed.

During the hearing of the matter on Tuesday, the Centre and several state governments sought some more time to file compliance reports.

While extending the time for filing affidavits, the court said the Centre and states should not only formulate schemes but also highlight suggestions for implementation of the programmes.

The court, thereafter, decided to constitute a panel to "assist and advise" it on suitable directions needed in the matter.

Stressing on the urgent need for rehabilitation, the court said: "It is only if a sex worker is able to earn a livelihood through technical skills rather than by selling her body that she can live with dignity, and that is why we have requested all the states and the Union of India to submit schemes for giving technical training to these sex workers."

While taking upon itself the job of getting the rights of sex workers enforced, the court had, in its February 14 order, stressed that the society should have sympathy towards sex workers. The bench observed that sex workers should not be looked down upon, "as our literature also had depicted many prostitutes like Chandramukhi and Rajyalakshmi as women of very high character."

The court had drawn a portrait of sex workers as women forced by circumstances to earn a living by selling their bodies and had pointed to Sonya Marmelodov in Dostoyevsky's novel Crime and Punishment.

"Sonya is depicted as a girl who sacrifices her body to earn some bread for her impoverished family," the order said.

"Reference may also be made to Amrapali, who was a contemporary of Lord Buddha," the court said in its order.

The bench said the plight of women had also been depicted in a poem by Urdu poet Sahil Ludhianvi. The poem had taken the form of a song - Jineh naaz hai Hind par, woh kahan hain' - in the famous Hindi film Pyaasa, Justice Katju pointed out.