The Legality of Sex Work in India
Scintillating glass bangles and curvy traces, red pouts and hair adorned with jasmine; lascivious manoeuvres of hemlines too short: illegal by night, ostracised by day. This is a plausible melange of the imagery that term sex worker arouses. Gratifying the hushed desire of millions, a ‘vice’ that is most pronounced in the night and silenced out of existence in the day. An outcast community, with needs and desires as mainstream as us, these sex workers, live outside of the law.
Sex work in India is governed by the Immoral Traffic (Prevention) Act, 1956. Although sex work is not illegal according to the Act, supporting activities such as maintenance of brothels or soliciting customers are punishable offences.
Brothels are defined by the Act to include “any house, room, conveyance or place, or any portion of any house, room, conveyance or place which is used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain for two or more prostitutes.” The Act criminalises any sex work within a 200m radius of any public place, including hotels. Moreover, the Act also penalises any entity who owns or knowingly supports prostitution in his/her premises and also prosecutes any adult over eighteen years of age, who lives on the earnings of a prostitute.
Before we delve into critiquing the vices and virtues of this Act, it is important to understand the nature of the controversial sex industry, trace its roots and illuminate the reasons why people choose to be or end-up being sex workers.
Surprisingly, prostitution is often deemed to be the oldest profession and can be traced back to the ancient Babylons. Ancient Indian literature is also replete with references to prostitution, a prominent example of which is Chanakya’s ‘Arthashastra’ where he clearly and meticulously writes about prostitution and its code of practice. This clearly suggests that prostitution has its roots in ancient India and is not a manifestation of decadence, as is sometimes claimed. Further, it is important to emphasise that the fact that this practice found a place in sacrosanct literature, including the Vedas and the Arthashastra, implies that prostitution was not an underground practice. Rather, it was a well-acknowledged, mainstream activity. This should raise some eyebrows the next time ‘culture’ is put forth as a reason to look down upon sex workers.
Although current estimates about the number of prostitutes is not available, a 2007 report submitted to the Ministry of Women and Child Development, reported that there are 3 million sex workers in India with 35.4% of them being less than 18 years old. Often, millions of sex workers are coerced into prostitution and continue to be victims of human trafficking and forced sex. However, there are millions of other women who turn to sex work to escape abject poverty. The law thus has to be designed to protect both the victims of sex slavery as well as people who voluntarily choose to take up prostitution as their profession.
Before we begin to develop opinions about people who willingly work as prostitutes, it is important to remember Atticus Finch’s advice: “You never really understand a person until you consider things from his point of view until you climb into his skin and walk around”.
The ability to discern and choose between morality and immorality is a prerogative of privilege. How would you respond to this question raised by a sex worker, “So what if I have to sell my body to make money? I want my daughter to have a better life. Is that too much to ask for?”
The fact that we, the constituents of the mainstream society, had an opportunity to attend school, to pursue our interests and take up professions we were passionate about, is a privilege that not everybody has access to. The fact that our families had enough financial resources to protect and promote our physical and intellectual well-being is a privilege that not everybody has access to. Given a choice between being destitute on the streets and lulling hungry children to sleep every night or working as a sex worker and expanding the opportunities for their children, these women choose the latter. Would you still look down upon them as immoral? Put in the situation that they are in, would you be able to care about philosophical concepts of morality?
On the other end of the spectrum, there are women and girls who were duped into sex work — victims of sex trafficking who continue to face sexual exploitation every day. According to statistics published by the Government of India, almost 20,000 women and children were victims of sex trafficking in India in 2016. However, as a Delhi police official pointed out, the actual figure could be much higher as many victims were still not registering cases with the police, largely because they did not know the law or feared traffickers. Sex trafficking is partly a manifestation of misogyny and partly a manifestation of socio-economic vulnerabilities of the disadvantaged sections of the Indian society, who are tricked into prostitution under the masquerade of promises of a good job or better life.
10-year-old Gita was sold into prostitution by her aunt. Now, 22-year-old Gita recalls how she was pinned to the ground by other sex workers, her mouth stuffed with a cloth so that no one could hear screams as the customer raped her. She contracted HIV.
In this light, we can now understand why the Immoral Traffic (Prevention) Act is not comprehensive enough to regulate the Indian sex industry, prevent trafficking and supporting sex workers and victims.
The fact that the Act criminalises brothels, which includes two or more women working together as prostitutes, implies that if women want to work as sex workers legally, they should do so alone. Further, the compulsion that sex work shouldn’t be within a 200m radius of any public place again implies that to engage in prostitution legally, an isolated location should be chosen. These aspects of the Act make sex workers more vulnerable to abuse and exploitation. Moreover, sex workers who are often exploited by pimps or brothel owners can’t take the resort of the legal system because, under the law, they will be prosecuted for working in a brothel and hence, they silently continue to suffer at the hands of brothel owners. Section 8 of the Act notably criminalises the act of seduing or soliciting customers. Though the Act may not prohibit prostitution, it certainly makes it very difficult for sex workers to legitimately exercise their right to work.
Criminalising brothels, soliciting and the practice of prostitution in proximity to public places in an attempt to curtail prostitution has clearly failed, which is patently evident from the fact that metropolitan cities like Mumbai and Kolkata boast red light areas of Kamathipura and Sonagachi respectively, which rank as some of the largest red light areas in Asia. The Act has made sex workers more vulnerable by forcing them to work in the darker, more invisible corners of the cities, silently suffering exploitation. This seclusion of sex workers also implies that they are left in oblivion about access to information about and treatments for sexually transmitted diseases, which they are most at risk of contracting. Further, it also means that they can’t access public facilities like public hospitals, colleges and schools, the access to which are quintessential for them to expand their opportunities and improve the quality of their lives.
Mainstreaming sex work, easing access to birth control methods and medical aid together with educational opportunities will not only enable sex workers to live a more normal life but will also work to a great extent to prevent their exploitation because they will no longer be vulnerable to their perpetrators.
The Act does not do a great job with prevention of sex trafficking, either. The Act mandates that victims rescued from the sex trade remain within a ‘protective home’ until the court orders their release. These protective homes are more like a prison, with the one in Mumbai having three barred gates before the women’s living quarters. ‘The women usually stand behind these doors, asking staff or visitors like myself, police personnel or NGO representatives when they would be released,” writes Ms Vibhuti Ramachandran, whose research is focused at the intersection of law and sex trade in India, in her article: Rescued But Not Released. These women are held in protective homes until the magistrate decides the suitability of their guardians. Often, the legal formalities mean that these women end up being forced to remain in protective homes beyond the 3 week period allocated for court procedures. This is applicable for women who are older than 18 years and their consent or opinion doesn’t find a formal place in the entire process. After a harrowing experience, a broken mind and body, victims of sex trafficking need emotional, mental and physical care to allow them to heal and grow. Although intended to ensure the safety of these women, this aspect of the Act almost makes them crave for relief and rescue all over again — initially from the clutches of their exploiters and now from ‘protective homes’. The entire process of rescuing victims of sex trafficking and transitioning them into the mainstream society requires a more empathetic perspective for women, with due respect to free consent and the choice of these human beings.
Thus, if the intention of the legislation is to protect sex workers and victims of sex trafficking and provide them with opportunities for growth, it is indispensable to understand their problem from their perspective and make them a part of the decision-making process instead of ignoring their voice and consent. It is important to understand the nuanced differences between the motivations of why some people voluntarily choose to do sex work and address their interests and at the same time is important to punish sex traffickers and rehabilitate women who were forced into sex work. A more inclusive legislation — legislation for sex workers and trafficked women and not for the upholding ideals of socially construed morality is the need of the hour and this is only possible, when we lend an ear to their voices.
Miranda Kane, a former sex-worker says: “I would like to gently suggest to you, when a sex worker talks, you listen. If you want to make laws that affect us, consult us. There should be nothing about us, without us.”
Sara Sethia is a Research Associate (Gender Justice) at One Future Collective.
Featured image: gaylaxymag.com