For a law that liberates sex workers

The proposal to legalise sex work by the Chairperson of the National Commission of Women, Lalitha Kumarmangalam, before a panel appointed by the Supreme Court to recommend changes in law, has sparked off a debate around the polarising subject of prostitution.

Sex work, the term being increasingly used by organisations of women in prostitution, itself provokes outrage across a broad spectrum from the conservative to the progressive and feminist. From being looked upon as an outcome of capitalism by Marxists or as an ultimate degradation of women by radical and socialist feminists to being asserted as a right to work is a long journey.

In fact, existential feminism deriving from the thoughts of Simone de Beauvoir takes the view that prostitution allows women an avenue of escape from dependency on men that does not leave them victims but rather empowers them. The entry of male, hijra and transgender sex workers into the arena has made the situation even more complex, of which the law in India has taken limited cognisance.

The debate with regard to law and sex work centres around the three options of prohibition, legalising and de-criminalisation. Total legal prohibition is a demand enjoying considerable support in society. International women’s organisations/coalitions as well as a number of NGOs work in this area with the perspective of the total outlawing of sex work.

Legalising prostitution translates into regulation and involves state control of sex workers through licensing. The option would involve registering with the Government, inspections, the issuance of licences and mandatory testing for HIV, amongst other requirements. The system is prevalent in Germany and the Netherlands. However, in India the compendium referred to as ‘licence raj’ has been ineffective, particularly in implementing social welfare legislations like labour laws, safety and child labour.

Experience has also shown that licensing leads invariably to a large section of ‘unlicensed’ sex workers even more vulnerable to coercion, extortion and violence. Similarly, coercive practices like mandatory testing fail to meaningfully address the HIV epidemic, perpetuate stigma and alienate and drive vulnerable populations away from the resources they need to safeguard their health.

Decriminalisation refers to the repeal of laws that prohibit sale of sexual services and is a strategy advocated by sex worker rights organisations and unions.

The model of decriminalisation has been followed in New Zealand and studies indicate that working conditions, access to health services and justice has improved for sex workers. There is no evidence to support the fear that decriminalisation would lead to an increase in trafficking into prostitution.

Trafficking is the “transporting a person by the means of the use of threats, force, coercion, abduction, fraud or deception”.

However, the conflation of trafficking with prostitution has dogged the debate since the inception of the law. Inadvertently or perhaps intentionally, as the result of a quirky mind, the law pertaining to prostitution/sex work enacted in 1956 was called the Suppression of Immoral Traffic Act (SITA), in effect wearing its moral bias on its sleeve.

SITA reigned for three decades till in 1986 the name itself was changed to Immoral Traffic (Prevention) Act or ITPA. The legislation was enacted in pursuance of the ratification by the Government of India of the International Convention for the Suppression of Traffic in Persons and of the exploitation of the prostitution of others. The origins as well as the title of the legislation reflect the conception of sex work as being synonymous with trafficking and its consequent treatment of adult women as victims.

The position of defining prostitution itself as inherently exploitative and a form of violence against women does not allow people in prostitution to access their right to earn a livelihood through sex work.

The need is to actively involve sex workers in the move to change the law and separate consensual sex work by adults from the entry of minors and the abominable practice of human trafficking.

Regardless of the view — prohibition, legalising or decriminalisation — followed, there is a consensus with regard to ending trafficking and on the entry of minors in the profession.

The difference perhaps lies in the way to go about prevention of trafficking and entry of minors. Raid and rescue or trying to work from within the profession through gharwalis or “madams”, are being tried out by organisations like Durbar Mahila Samanvay Samiti (DMSC) in Kolkata and Veshay Anyay Mukabla Parishad (VAMP) in Maharashtra with moderate success.

In the context of consent, trafficking and entry of minors, self-regulation would involve some sort of self-regulatory boards of sex workers and their associations rather than the coercive arm of the law.

The debate on prohibition, regulation and de-criminalisation apart, the law with regard to sex work in India needs to emphasise the distinction between adults and minors, especially with regard to consent.

The “raid and rescue” approach has to be examined from the point of view of human rights, dignity and privacy of the individual. Invariably, the girls/women “rescued” feel they have been “arrested”, and have been in fact kept in confinement and imprisoned.

Regardless of the initial mode of entry, the wishes of an adult individual must be ascertained before any prosecution or ‘rescue’ goes forward — an adult could well choose to remain in sex work, even accounting for the fact that the person might initially have been trafficked, illegally and unwillingly.

Meanwhile, discriminatory provisions — giving powers to order the removal of a sex worker from a particular area — need to be weeded out. The legislation must be brought in line with the fundamental rights of people in sex work to live and work in liberty and dignity, the right to move unhindered, the right to reside in a place of their choice and the right to migrate — in short, the right to live freely as a full-fledged adult citizen of the country.

The writer practices law and works on decoding the law for sex workers

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