India’s recent Supreme Court decision to improve the rights of sex workers is not only a poignant step towards acceptance and regulation of the industry but also a clear example of judicial decree stepping in when legislative work fails to protect minority groups.
India is one of the many nations in the world that has an established legalized community of sex workers. There are an estimated 900,000 sex workers in India, and as of 2016, approximately 40-42 million worldwide (Yasir). As sex work is often looked down upon, the industry and those involved with it have historically suffered gross abuses from police, exclusion from government protections, and been subjected to other illicit practices, like human trafficking. In response, government regulation is favored as a way to protect sex workers’ rights.
In India, legislation to legalize prostitution—defined as the performance of sexual acts for money— has gone a long way to helping support sex workers, while at the same time clamping down on solicitation, pimping, and brothels (Schmall). Since then, however, there have been no new attempts at legislation to improve treatment or conditions. In 2011, a legislative panel was established to examine the issues of marginalization, violence, and police harassment faced by sex workers, but it yielded no new laws.
After nearly a decade, the judicial system is finally stepping in to help protect sex workers. “Instead, the Indian Supreme Court has been steadily removing barriers that deny prostitutes their constitutional rights, including, most recently, the order this month, which focused on police enforcement of laws against sex crimes” (Schmall). The May 2022 order mentioned aims to reduce arrests and harassment of legal, consenting, adult sex workers and instead focus efforts on providing services and rehabilitation to sex trafficking victims and those who seek to leave the industry. Police abuse levels towards sex workers are rampant as many are arrested without cause and cases of violence against workers are overlooked and pushed aside as officers are unwilling to peruse what they consider domestic abuse cases.
A quick lesson on the legal system: every nation in the world is equipped with some type of legal system, commonly referred to as the judiciary. While each system may vary, in most cases, there exists an ascending tiered approach with lower courts handling smaller civil or criminal cases, an appellate court to handle appeals to overturn decisions, and various state and federal level courts to deal with larger issues, and so on. At the top of this structure presides a Supreme Court, charged with evaluating major cases that often create judicial precedence for the rest of the system. In principle, the judiciary is supposed to be a non-partisan body, responsible for upholding the law of the land despite the whims of a given administration or ruling party. Now, this of course is not implicit around the globe, but it is commonly found in modern democracies. Often conflict and debate may arise when a judicial ruling goes against the will of the current governing party or when a ruling is considered to overstep its bounds, this is admonished as judicial activism.
While those opposed to this development in the protection of sex workers would certainly cry wolf, in this case, the Indian Supreme Court was well within bounds to issue this May ruling. Just six months earlier in December 2021, the Supreme Court also ruled to provide sex workers with basic rights like voting and the receipt of social welfare benefits (Yasir). The December ruling mandated local governments to issue voter identification cards and food ration cards, which were previously restricted due to the unrecognized status of sex work as a profession. The Indian Supreme Court has also stepped in to impose protections like this before, as it was the first body in India to pass anti-sexual harassment rulings for the workplace that would eventually become the basis for laws prohibiting such years later.
Looking globally as well, in July 2020, the United States Supreme Court “ruled that 3 million acres of eastern Oklahoma — including most of Tulsa — remain American Indian reservation land” despite incessant attempts from the US government to acquire and develop the land for the Keystone XL Pipeline project. (Estes) This was a major win for indigenous groups in the region and beyond, as the judicial precedence in favor of indigenous rights is likely to carry over into other legal battles over land use. Despite promises from lawmakers and various presidential administrations that the land would be protected, at the end of the day, the law of the land is worth more than kind words. It took judicial action for change to occur and protections to take effect, just as it did for sex workers in India. In the United States, India, and around the globe minority interests are far too often easily ignored. Thankfully, the checks and balances provided by judicial oversight can help to protect and correct some of the injustices that occur.
There is a clear need and effort to improve the condition of sex workers in India, and while the work is being left to the judiciary, at least something is being done.
Estes, Nick. “The Supreme Court ruling on Oklahoma was welcome, but Indigenous people deserve more.” NBC News, NBC Universal, 12 July 2020, www.nbcnews.com/think/opinion/supreme-court-ruling-oklahoma-was-welcome-indigenous-people-deserve-more-ncna1233526. Accessed 5 June 2022.
Schmall, Emily, and Sameer Yasir. “India’s Supreme Court Orders Police to Respect Prostitutes’ Rights.” The New York Times, 22 May 2022, www.nytimes.com/2022/05/27/world/asia/india-prostitution-rights.html. Accessed 5 June 2022.
Yasir, Sameer. “ndia’s Sex Workers Win Benefits From the Country’s Top Court.” The New York Times, 15 Dec. 2021, www.nytimes.com/2021/12/15/world/asia/india-sex-workers-benefits.html. Accessed 5 June 2022.
Photo: Gaur, Pradeep. Women Waiting. The New York Times, 27 May 2022, static01.nyt.com/images/2022/05/27/world/27india-prostitution-03/27india-prostitution-03-superJumbo.jpg?quality=75&auto=webp. Accessed 5 June 2022.