This article has been authored by Biyanka Bhatia, a third year student at UPES, Dehradun.
In the Indian society, sex workers are often seen as a menace, a class threatening the social order by endangering public health, sexual morality and civic values. Sex work means the exchange of sexual services for some form of remuneration. The Indian law regulating sex work, Immoral Trafficking (Prevention) Act, 1956(“ITPA”); severely penalizes activities associated with transactional sex. By reading the provisions of ITPA, it is indicated that transactional sex is not a crime in itself but the associated acts are sanctioned, which undoubtedly leads to discouragement among sex workers. But is it the right approach adopted by the legislature and now being promoted by the judiciary? Engaging in sexual activity is a personal decision, and criminalizing it is an example of audacious state paternalism that violates individual autonomy and dignity, thus, undermining constitutional rights.
As prostitution is concealed under a veil of sexual morality and social order, unlike other occupations, there is little legitimacy or space for debate about the demands and needs of sex industry workers. Thus, even their basic human rights are at stake. By giving sex work, a legal status, a variety of problems would be solved, and would be a progressive step towards a liberal society.
In most nations, deciding the legal status of sex workers has been a controversial issue. There are three broad policies prominent across the world to regulate sex work. These are; the suppression system, the legalization approach and the system of abolition.[i] Under the suppression scheme all activities related to prostitution, including sex work, are criminalized, with a few exceptions. The legalization strategy assumes that sex work is existing from time immemorial, so it is removed from criminal law and placed under general law. For a practical solution, the state may issue certain guidelines. The system of abolition, considers sex work to be a social evil, criminalizes parties engaging in sexual intercourse rather than a transaction. The Indian approach has been ambiguous regarding this.
One of the major faults is in the understanding of “sex work,”. It is important to highlight the distinction between sex work and trafficking. The belief that all sex work is equal to human trafficking derives from the belief that women can never choose sex work as a career and are therefore inevitably trafficked into it. The approach of ITPA has been similar, it labels sex workers as victims and works on their “rescue and rehabilitation.” But such efforts have proved to be futile, as in a country like India, with such mass population, to follow up on rehabilitation cases to ensure they are not reverted back is a herculean task. Where does the compulsion for displacing millions of women and men who are already engaged in an income-earning profession that supports themselves and their extended families come from in a country where unemployment is so high?
Thus, such lacunae should be resolved by making efforts to recognize consensual transactional sex under the ambit of Article 19(1)(g) of the Constitution, so that even such sex workers are provided with all basic human rights instead of considering them as morally compromised second class citizens.
Prostitution is described as commercial sexual exploitation/abuse under Section 2(f) of the ITPA. The Act's charging sections 3-9 make any facilitation, assistance, or abetment of commercial sexual exploitation as unlawful. This implies that Transactional Sex per se is not a crime, but the related activities are under the radar of the Act. Keeping of a brothel, living on the earnings of prostitution, seducing for the purpose of prostitutions are certain offences under the act. These provisions are often used against sex workers who indulge in sexual relationship for the sake of earning. Therefore, this vague legislation, which allows sex work but not actions necessary for it to be performed, gives cops a lot of leeway, resulting in rent-seeking conduct, including monetary and sexual pay-offs. This has resulted in stopping women from choosing sex work as an occupation, due to such fettering provisions, even if a woman wants to earn money by sex work, she won’t be able to do so. With the increasing poverty and unemployment in the country, when there’s no food on the table, a woman opting for sex work as an occupation to take care of herself and her family is a step forward in the society.
Need for a Change
The citizens of India are entitled to practice any profession, trade or business under Article 19(1)(g) subject to restrictions in Article 19(6), made for public interest. In the case of Narendra Kumar vs Union of India, the Supreme Court said that the Court while deciding on the reasonableness of a restriction must look into the nature of evil sought to be remedied and if the restraint caused by law is more than necessary. When the provisions of the ITPA are seen in this light, it is clear that the law's effect is diametrically opposed to the goal pursued. The stringency of the provisions is unnecessary in the light of the remedy sought by the legislation. It is unclear that why economic rights of a sex worker, which is a fundamental right, is being regulated by criminal sanctions.
The Navtej Johar case, gave precedence to individual over the state or society, thus following the same jurisprudence, consensual transactional sex cannot be restricted by public order or interest of the state. Therefore, transactional sex, when stemming from choice, as form of work resulting from economic motivations cannot be termed as exploitative labor.
In a recent judgment of Kajal Mukesh Singh vs State of Maharashtra, the Bombay High Court did agree that scope of ITPA is not to criminalize voluntary sex work but abolish commercial sexual exploitation. It was stated that women have right to vocation under Article 19(1)(g) but the issue was that the bench went onto say that Section 3-9 of ITPA were reasonable restrictions under Article 19(6). The issue in this is that the Bench is restricting a fundamental right (sex work) on the same measures of a criminal activity (commercial sexual exploitation), which is a back door entry for criminalization of sex work which was never the objective. Thus, it is being observed that even though the judiciary is attempting to move towards a liberalistic approach, the loopholes are unavoidable. If the State continues to impose sexual morality under the pretext of "reasonable restrictions," sex workers would be unable to determine the control of their work. It is high time that sex workers are considered as workers with right to work.
[i] JODY MILLER, SOURCE BOOK ON VIOLENCE AGAINST WOMEN 462(Claire M. Renzetti, Jeffrey l. Edleson and Raquel Kennedy Bergen, 1st edn., 2004)