This blog has been written by Ramsha Hashmi of Tamil Nadu National Law University, India. Ramsha is a researcher and a prolific blogger who focusses on various gender and social issues.
Did you enjoy watching Sanjay Lela Bhansali’s critically acclaimed move “Gangubai Kathiawadi” which depicted the triumphant journey of Ganga, a renowned sex worker turned politician in Bombay? If yes … then spare some time to read about thousands of other Gangas out there who are often unheard and neglected.
I. Sex work: A dwindling fate of respect and tabooing …
Sex work has been a part of the Indian society for a long time; a common adage. For a major part of our history, sex workers were treated similar to every other profession, even better, as entrepreneurs and were often endowed with royal patronage. Their political affiliation lent them considerable influence over the affairs of the state and an active part of society. These tawaifs (sex workers) held a respectable place in society as the zamindari system declined and British influence increased. The influence of the British and their puritan ideology was felt massively in the nation as the tawaif culture fell out of grace, along with sex becoming an increasingly taboo overall. Post-independence India imbibed the same ethos in its mindset towards sex work as a profession.
II. The Supreme Court of India on sex work as a profession ……
However, May 19th 2022 marked a milestone for thousands of sex workers throughout the country when the Supreme Court made headlines by recommending that prostitution should be regarded as a profession like any other. It put emphasis that sex workers like any other profession deserve dignity and constitutional rights. Emphasising on the attitude of the police towards sex workers, which is often violent and brutal, the Supreme Court said that police should not interfere or take any action against an adult engaging in consensual sex work.
Court also ordered the Centre to clarify its stance on suggestions made by a panel it appointed in 2011 to study issues related to human trafficking prevention, rehabilitation, and the dignity of sex workers. In 2016, the Centre notified the apex court that a proposed legislation included the panel’s recommendations. But since then, no legislation has been enacted yet.
III. What did they say???
According to the courts verdict in the absence of such a law, its orders would be valid up until a law on the subject is made.
Sex workers and their children are protected by Article 21 of the Indian Constitution, just like everyone else, according to the Supreme Court’s panel of Justices L Nageswara Rao, BR Gavai, and AS Bopanna.
“No one may be deprived of their life or personal liberty except in accordance with the legal process, according to Article 21, also known as the Right to Life.”
“It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India,” said the SC order, as per a copy published by Live Law.
IV. Indian penal laws and sex work as a profession …..
Prostitution is not illegal in India (at least on papers) however the Indian Penal Code declares many activities associated with it as illegal. Activities such as pimping, renting out property for running brothels etc. are punishable by law.
The Immoral Traffic Prevention Act of 1956 emphasizes that sex workers can practice their profession however any person who makes an earning from prostitution is to be punished, including procuring, abducting or inducing a person for prostitution. This was done to ensure that no one engages with illegal trafficking, forcing or inducing an individual into sex work.
The legislation further stipulates that in order to engage in prostitution legally, sex workers must remain at least 200 meters away from any public area, preferably in a remote area with no visible public institutions. In other words, sexual activity should be performed in private, hidden from the prying eyes of the larger, “mainstream” society. I am sparing myself on engaging into the debate on what can be considered as mainstream here!
V. The othering culture towards sex workers ……
This othering of sex workers puts the legal status of the profession under ambiguity. This inadvertently has led to the marginalization of sex workers, isolating them from the rest of society. Estimates show that there are presently 3 million sex workers in India, majority of them between the ages of 15-35.
The primary issue with the secretive nature of sex work is that even though prostitution is not illegal it is perceived as such by the commoners. The Indian legal system and the enforcement personnel also contribute to this narrative that sex workers are rather perpetrators of crime. Rape, violence and trauma is seen as part of the job and poor sexual hygiene and menstrual hygiene is ignored, leading to diseases such as HIV-AIDS and cervical cancer not receiving adequate medical attention. These issues are rather embedded as intrinsic normalization of this profession.
Subsidies and compensations available to citizens from lower socio-economic strata are unavailable to sex workers due to lack of ration card or them not being recognised as valid.
Children born in brothels are either not accepted in schools, or face massive resistance from school administration and parents alike. Obtaining valid proof of identification is another major hurdle for sex workers and their children alike, restricting their social mobility forcing their children to enter the sex work profession as well. It truly is a vicious cycle of segregation, deprivation and ultimately marginalization.
VI. Will the Supreme Court’s verdict change the trajectory of sex work in India?
Legalising sex work could remedy most of these issues and provide legal restitution and protection for millions of sex workers that are otherwise exploited. The lackadaisical approach with which the police adopts towards complaints of sex workers as normal occupational hazard can also be challenged with the new directions given by Supreme Court.
Noteworthy that the apex court directed any sexual assault victim who works in sex industry “should be given access to all facilities available to a sexual assault survivor, including immediate medical assistance.”
This support will be in accordance with Union Health Ministry guidelines and protocols for survivors and victims of sexual violence as well as Section 357C of the Code of Criminal Procedure. The laws preventing workplace harassment would further be applicable to any sex worker who is a victim of sexual assault and will be meted the same treatment as any other survivor would be, including immediate medical attention.
The SC order also prohibits forcible separation of children of sex workers. The order stated, “Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”
For years, the morality of sex work has held back legislators and courts from protecting constitutional rights of sex workers. It is time that sex workers are treated with equal dignity as every other citizen of this democratic nation!