By Nidhi Singh and Shivani Swami
The awaited judgement deciding upon the constitutionality of Section 377 of Indian Penal Code which criminalises “voluntarily…carnal intercourse against the order of nature with any man, woman or animal” came out on 6th September, 2018. In essence, the judgment held the provision unconstitutional to the extent that it criminalises carnal intercourse of any kind between consenting adults including those belonging to the same sex. In doing so, the Indian Supreme Court has indeed done a commendable job of upholding constitutional morality over and above social morality. The court in essense observed that howsoever small the size of the LGBT community, depriving them of dignity shall tantamount to a dereliction of fundamental rights.
The court recognised that S. 377 restricts the individual’s choice to engage in certain acts within their private sphere which is basically premised on the age old social perception. This needs to change in order to embrace the virtues of a wide magnitude of a pluralistic and inclusive society, while also abiding by the principles of constitutionalism. It is an individual decision of a person to engage in a consensual sexual act, thus defining individualism of a person, and by criminalising this act, it violates individual dignity and dents his constitutional rights. Hence, as very aptly put by the Court, ‘the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism’. It is this nature of the Indian Constitution, while also adhering to the principles of justice, liberty, equality and fraternity enshrined in the Preamble to our Constitution, which makes it a living and organic document.
While the Johar judgment partially struck down S. 377 for violating Article 14, 19(1) and 21 of the Constitution and gave constitutional emphasis to ‘consent’ and ‘dignity’, it has somewhere ignored the economic rights and freedoms deeply embedded in ‘dignity’ and ‘consent’. Interestingly, the Johar judgment could serve as a foundation for recognising the right to dignity and privacy of marginalised workers of the nation. As rightly argued by Shruti Rajagopalan in her article on ‘Rooting Economic Rights in Dignity and Consent’, carried by LiveMint on September 17, 2018, the concerns regarding protection of economic rights and freedoms in dignity and consent, have not been adequately addressed by the Indian courts so far. It is a ripe moment for Supreme Court to recognise the dignity and privacy of marginalised labours as well.
The citizens of India are entitled to practice any profession, trade or business under Article 19 (1) (g), subject to restrictions made in public interest, under Article 19 (6) of the Indian Constitution. What is disturbing is that the Johar judgment, as such does not apply to Article 19(1)(g), especially when transactional sex work is not met with the same standards as consensual sex between the same gender individuals. Such an interpretation appears to be in contradiction with the jurisprudence of the Johar case, because, if the sexual conduct of consenting individuals of same sex is not violative of the Constitution, then how can the consensual transactional-sex relations continue to be unprotected?
This in return begs a constitutional question- Why is this arbitrariness being resorted to in protecting the economic rights of a dance bar worker or a sex worker? As discussed above, the Johar judgment showed us that the Constitution guarantees dignity to individual rights and that same sex relations cannot be criminalised merely by virtue of the sexual orientation of the consenting adults involved. However, the judgment limits its analysis of rights of sex workers to a passing mention of the adverse impact of Section 377 on the “right of health of persons afflicted with or vulnerable to contracting HIV”. Not recognising the dignity and privacy and economic rights of sex workers leads to constitutional inconsistency and a constitutional interpretation of convenience, thus impinging upon the democratic values of the nation.
This is, however, not the first instance of marginalisation of sex workers in these terms. The legal status of sex workers has long been a matter of ambiguity in the Indian legal landscape. Transactional sex work per se is not prohibited by any law in India. However, the Immoral Traffic (Prevention) Act, 1956, does penalise related activities, such as, inter alia, keeping a brothel or allowing premises to be used as a brothel, living on the earnings of prostitution of another person, procuring a person for the sake of prostitution, and prostitution in or in the vicinity of public places. The provisions of this Act is often misused against sex workers.
Even the recent Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 adopts the definition of trafficking of persons in Section 370 of the Indian Penal Code. Interestingly, this definition includes ‘any form of sexual exploitation’ which is also rigorously applied to sex workers. The problem gets further exacerbated due to the introduction of an offence of ‘soliciting or publicising electronically, taking or distributing obscene photographs or videos providing materials or soliciting or guiding tourists or using agents which may lead to the trafficking of a person’, punishable with 5-10 years of imprisonment. It is not uncommon for sex workers to use online platform to solicit work and communicate with potential clients. In such an event, the trafficking provision will kick in even if a Whatsapp message or image is circulated, thus criminalising all the sex workers. 
This remains the situation despite the Supreme Court ruling in Budhadev Karmaskar v. State of West Bengal which clearly spells out that sex workers hold the right to a dignified life as under Article 21 of the Constitution of India. The Supreme Court, in the same case, had also set up the Pradip Ghosh panel to look into the status of sex workers across the country. The panel’s recommendations as discussed in the subsequent orders of the Court, reveal that despite the Court’s affirmation of the status of sex workers as holders of the fundamental right to a dignified life, ground realities hinder the protection of basic economic rights of sex workers in India.
Given the stigma and fear of prosecution attached to sex work, sex workers are unable to fulfil requirements of furnishing information as to occupation, proof of residence etc. for procurement of Voter ID cards, ration cards etc. Sex workers from the National Network of Sex Workers have also shared that residence proof, fathers’ name and caste, and ration cards were some of the documents that were required for getting their children admitted into schools. Ultimately, they remain politically unrepresented and economically insecure. The panel has also recommended the amendment of the Immoral Traffic (Prevention) Act, 1956, specifically relating to penalising of solicitation for the purpose of prostitution, the excessively broad definition of “brothel”, among other provisions.
Even in the presence of such rulings and recommendations, India’s sex workers continue to be marginalised. State inaction, both in terms of refusal to amend laws relating to prostitution, and its lack of initiative in licensing and thereby protecting transactional sex workers has led to the brutalisation of sex workers, thus depriving them of dignity and privacy. Brothels house sex workers, a number of them children, in inhuman conditions. The National Commission for Women has observed that accessing health care is a major concern for women in sex work. The slow pace of progress in this regard, is also to be attributed to missed opportunities such as the one presented by the Johar case to ensure economic rights of sex workers.
The Johar case had all the elements: a deliberation on consent as the fulcrum for discriminating criminality of sexual conduct, a debate upon constitutional and social morality, the evaluation of the individuals’ right to privacy, equality and dignified life. It was an ample platform for the Hon’ble Court to spell out the protections and freedoms deserved by the sex worker community of India.
To this extent, the legal framework of India has failed sex workers in denying them basic economic rights. It is important and urgent that their rights and struggles be addressed by the State. The legislature must take to decriminalise keeping of brothels and solicitation for prostitution, and make laws ensuring standards of health and safety within brothels, security of pay, etc. and courts must do all in their power to ensure that every opportunity to spell out the rights of the community is exploited to ensure that they live with human dignity so that they attain the quality of ‘individual being’. The extant uncertainty in legislations with regard to the status of sex workers should be addressed lest they be declared a criminal each time in the eyes of law.
(The authors are a Senior Research fellow at the Institute for Commercial Law and Policy Research, New Delhi and a final year student at the National Law Institute University, Bhopal respectively)
 Navtej Singh Johar & Ors. v. Union of India, Writ Petition (Criminal) No. 76 of 2016 (Supreme Court of India) (Unreported).
 Shruti Rajagoplan, Rooting economic rights in dignity and consent, Livemint (Delhi) September 17, 2018.
 See id., § 1.
 S Naveen Kumar v. State of Telangana, Criminal Petition No. 3158 of 2015, Andhra High Court (Unreported).
 Tandon Tripti, India’s Trafficking Bill 2018 is Neither Clear Nor Comprehensive, Vol. 53, Issue No. 28 ECONOMIC AND POLITICAL WEEKLY (July 14 2018).
 (2011) 10 S.C.R.
 NATIONAL NETWORK OF SEX WORKERS, Report of the Meeting on CEDAW status and sex workers, Bangalore (2013).
 National Commission for Women, Societal violence against women and children in Prostitution, 1997.