Author: Nandni, V year of BBA LL.B (H) from Amity Law School, Noida
Introduction
Sex trade as a form of human trafficking can be seen as an old age crime, but with the passing time, this atrocious act is strengthening its roots into our system, causing hardship, misery, and degradation. The term trafficking is integrally linked to slave-like conditions, where victims suffer indefinable exploitation and destitution. The organizers and beneficiaries of the crime are called traffickers.
Sex trafficking is not an isolated obstruction. Its effects are characteristically connected to socio-economic, cultural, and even political events. It means that this barbaric practice is not only a violation of human rights but also a scar in our societal wellbeing. Human trafficking is so violent that it incites human flow as a commodity for economic gains.
The sex trade is a clear display of the uneven status of women and children in society. Everybody is very well aware of the menace of the sex trade carried around us. It reflects the traffic of human beings as stems from a diverse set of societal imbalance. It has led to numerous debates, scholarly writings, legislative intervention, and judicial adjudication on the issue. In this paper, I would essentially deal with the popular perception of trafficking as sexual exploitation[1] of the disadvantaged, i.e., women and children.
(Marx, 1887)," Karl Marx's concept of "primitive accumulation of capital," helps understand the emergence of human trafficking as a singular demonstration of sub-humanity. Marx supported capitalist wealth, for which the primary attribute was the exploitation of labour. It embraces not only the exploitation of labour but also the surroundings, nature, and the environment in the wrong way. This idea instigates the implication to treat everything as a commodity, even labour. These characteristics of the Marxist concept can be seen in the form of slavery in a capitalist economy. It dwelled over time through periods and changed its form into derogatory practices of bonded labour, child pornography, drug trafficking, sexual exploitation, forced prostitution, and many more. In the current global setup, human trafficking can be embraced as a profit-oriented blueprint in a competitive economic system to procure low-cost factors of production. Hence, the sex trade should be precisely understood from this perspective. First, the women are coerced to work as sex workers against their will, and the circumstances they ought to work are not in favour. Thus, it can be seen that a new aspect added to capitalism is that workers should be liberated to sell their labour. Therefore, it has been accorded that women should be able to sell their labour. This view is not harmonized but rather criticized as over-exploitation because women who sell their convenience are generally forced to do so, which discards their identity, dignity, and freedom.
Although Indian law has declared trafficking illegal, it takes place recurrently, violating national legislation. This calls for a need to reinforce our legislation, criminalize the phenomenon in specific, and enhance rights and aid to the victim. In general, we argue, these are primary objective consideration to be taken into account, but the different perspectives, other aspects should be made more significant to make these measures and protection duly effective
ROLE OF INDIAN JUDICIARY
Indian Judiciary lies today at the notable endeavour to secure a just society. As an administrative institution, the Indian Judiciary has always driven considerable respect from the country's people. The Supreme Court has from time to time laid down Several distinct legal principles to activate the judicial system to protect human rights and social justice The Indian Supreme Court is known globally for its judicial engagement. It can more efficiently address this problem by assuming a less biased perspective than it has dispensed to date. Judiciary could perform a central role in countering the major inhumanity since its competence to develop an effective solution to paraphrasing national and international laws impartially. Further, I would support my point by relevant judgment:
Upendra Baxi & Lotika Sarkar V/s State of Uttar Pradesh[2]
The case questions the sanctity of Indian legislation and the Indian judiciary's capacity. It indicates the great menace of sex trafficking. The Writ petition was made to the Supreme Court for dreadful conditions developed in the Agra Protective Home, where the girls were kept. The litigation, which stretched over many years, excelled in a three-phase manner, starting under SITA and lasting till 1997, even years after ITPA was created, started after a letter to the Supreme Court of India, written by Upendra Baxi and Lotika Sarkar, both of whom were lecturers at the University of Delhi at the time.
The document was originally a letter to be published in The Indian Express, which presented a disturbing depiction from the “Agra Protective Homes'' ("house"). The Supreme Court turned the letter into a petition. also directed the Supervisor to clarify the petition's claims. The Supreme Court followed this case from 1981 to 1997 and detected significant abuses and omissions in the security homes' service, but never made a clear judgment to prosecute those liable. Additionally, it was recommended that a women officer behold the post of the special officer if possible. The supreme court has been proved inefficient in the judgment as it had relevant occasions to examine possible regulatory neglects, corruption, and corporal violence in the 'Home.' The decision is the judges' prejudice towards the victims of prostitution and ostensible disregard for the unjust reinforcement of the legislative measures.
Hence, The Indian judiciary's morally deficient and has adopted discriminatory policy has led to the marginalization of sex problems among women and children. It is essential to reform the Court's detrimental mindset concerning the victims of trade and the unequal reading and implementation of current laws. More objectivity in the Supreme Court's strategy would maybe put us closer to the idyllic model of fairness and preservation of victims' fundamental human rights. the outburst in the sexual trade of minor children and women in the Indian sexual marketplaces, also suffering from the victims on the street and in the brothels. They questioned the holiness of the Indian constitution and legislation and the integrity of the judicial system in India. Nevertheless, it is a sad yet significant reality that robust legislation on sex and prostitution are rarely enforced in India and, consequently, very few judicial rulings on the subject are accessible. Individual decisions accessible are inspired and caused by public figures who have considered women's slavery and vulnerability unreasonable.
Recommendations
Bar conflation of sex work and trafficking in legislation
· Execute the recommendations and direction in the Reports on Sexual Exploitation Against Women. Additionally, get hold that anti-trafficking legislations do not abuse people's social and civilized rights in sex work.
· Adult Sex Trafficking and Sex Trafficking of Children had better be governed under different legislation to ensure that sex work among consenting adults is not infantilized and exploited children get their due justice.
· Strengthen endeavours of NGOs, and other associations, to fight sex trafficking in their areas
Decriminalize prostitution and related activities
· Revoke legislation which prohibits sex work between consenting adults, like laws against “immoral” incomes, “living off the earnings” of the sex worker, “brothel-keeping.”
· Harmonizing of legal policies must be ensured for secure and healthy working circumstances for sex workers.
· To Ensure codified civic and legislative offences like “loitering without purpose,” “public nuisance,” and “public morality” are not wickedly utilized to punish and harass sex workers.
· Revoke provision for compulsory detainment or residing in rehabilitation centres for sex workers.
Strengthen mechanisms to identify activities compounding sex workers’ violence and make law enforcement accountable
· Guard against unreasonable confinement of sex workers by police and investigate harassment and exploitation by them.
· Affirm secrecy and regard for sex workers’ privacy who comes to law offices and judiciary for relief against sexual abuse, exploitation, and brutality.
· Police, public prosecutors, and other relevant organizations must be trained to tackle sex workers’ issues and be held accountable.
Strengthen the sex worker's access to the judiciary
· National Human organization Instruments (NHRI's) must be strengthened and held responsible for the complaints filed or instigate Suo moto suit on the brutality by state and non-state perpetrators against sex workers.
· The government should make Legal Aid Services freely available to the sex workers by lawyers exceptionally trained in the field.
· Outlaw compulsory HIV and STI examination of sex workers after the arrest.
· Supreme Court should reinforce its recommendations for issuing self 'Identity Proof': ration cards, Aadhar cards to sex workers.
Participation in policymaking
· Confer Empowerment and ensure active participation of sex work associations and confederacies in composing legislation, schemes, and recommendations.
· Assure the assistance of sex workers and their operating force in drafting laws and policies and their implementation.
Conclusion
This paper aims to show the need for the judiciary to improve the conditions of sex workers. Legislature makes the laws to present situations and on foreseen problems. However, many times some unforeseen problem arises which is not codified. burden shifts on the judiciary to address the situation. During the pandemic. However, by interpreting Article 21, judiciary pronounces free rations and financial aid
to the sex workers.
The Supreme Court is recognized for promoting human welfare, and its accession to deal with the issue of the sex trade, judiciary try to deal with the menace, but it proved to be ineffective. Court has been overly protective of the issue of prostitution, but not exactly the real victims. For such conduct on the judiciary, real victims have to pay a hefty price of their dignity and self-esteem. This has considerably hindered the accessibility of justice to the marginalized group.
The Supreme Court should direct the effective implementation of existing laws by upholding constitutional standards and suggest changes in existing laws if inadequate, whether the poorest or the weakest must have access to justice. The Court’s lack of need or sincerity and its hesitation to exercise general laws to prevent massive sexual exploitation is morally perverse and legally untenable.
[1] Sanya Talwar, SC Urges Centre & state to provide Monetary Assistance to sex workers without insisting on identity Proof, (Sep.22, 2020 7:32 PM),https://www.livelaw.in/top-stories/sc-urges-centre-states-to-provide-monetary-assistance-rations-to-sex-workers-without-insisting-on-identity-proof-163346.
[2]Upendra Baxi and Lotika Sarkar v. State of Uttar Pradesh, (1983) 2 S.C.C. 308(India)