The criminalization of sex work pushes the entire industry into shadows and weakens our ability to combat coercive, exploitative labour conditions and violence against sex workers. But more than that, it reinforces the colonial and classist morality on a particular section of the society that needs to be kept in place, outside on the margins. One aspect of this criminalization stems from the State’s direct failure to carry out its responsibility of protecting all its citizens. The other element is the denial of bodily autonomy and agency to sex workers in choosing their area of work. This article aims to decode the intention and motivation behind establishing these status offences despite the lack of inherent criminality and blameworthiness. To conclude, this article is an insight into what the prejudicial process of criminalization has looked like and how ambiguity in law is used as a tool to marginalize the outsiders further.
CREATION OF CRIMINALITY:
The legal system was never supposed to be concerned with private morals or moral sanctions. Still, history has been witness to the multiple instances when the traditional society has sanctioned dominant morality. Specific forms of conduct have been deemed to be of public importance and have been brought within the scope of criminal law. But certain conduct-less offences are also treated with equal severity and has been appropriated with penalties and punishments. These categories of crimes are not made illegal due to the presence of guilty Act but for the lack of being moral as defined by the dominant section of society. These acts and the actors are both marginalized and penalized for they infiltrate the public image that the rich want to paint.
The process of law-making imports values and principles that are carried in the society and the judiciary then imposes these values and principles on those not abiding by it. But this idea of maintaining the community’s moral fabric can be labelled as patriarchal and prejudicial as it chooses to enforce those values that suit their agenda, culture, and moral standing. These select values include heteronormativity, repressed sexuality, restricting women’s bodily autonomy for procreation and lineage, continued ownership of private property and income-divide. These values then translate into the legal discourse that monitors and maintains society’s behaviour based on these standards.
However, it is not the value of the marginalized but the dominant ideology that guides the movement of law and the life of those who are found in the realm of such corners. The legal system seems to have taken up the responsibility of cleaning and sanitizing both materially and symbolically, the deviants of the social groups found in society’s lowest strata. They are then either categorized as victims needed to be rescued or criminals needed to be disciplined, along with the systematic discourse of stigmatization or social exclusion.
Ideologies about sexuality are deeply entrenched in patriarchal and misogynistic roots relating to ownership of the private property through legitimate heirs and exercising control over women’s bodies. The State only recognizes a narrow aspect of sexuality and pleasure that is found within the boundaries of marriage and reproduction, ignoring all other forms of expressions and manifestations. It was continuous to replicate the select values of heteronormativity and represses other desires as unnatural and undesirable. The physical and mental labour that goes into providing these services is completely ignored, along with the hazardous conditions in which are made to work- Be it a lack of sanitation facilities or unwanted pregnancies, be it the risk of sexually transmitted diseases or police brutality.
THE LEGAL PLAYGROUND: Immoral Traffic (Prevention) Act, 1956
The social attitude on public morality has seeped into the making of the legislation- the Immoral Traffic (Prevention) Act, 1956 which is used more as a tool to exploit the workers than to provide the remedy. This piece of legislation remains silent on the legality of sex work itself but instead throws light on the illegality element that needs to be condemned. It has restricted the offence of ‘solicitation’ and ‘public nuisance’, but it continues to maintain its silence on matters of exploitation and police brutality. While sex work is deemed, legal per se certain associating activities surrounding sex work are explicitly regarded as illegal- like managing a brothel, living off the money procured using prostitution, soliciting or luring a person into prostitution, traffic of children and women for prostitution, etc.
The State has adopted a system of repression to deal with sex work. The policy model was designed in a way to impose the moral values of the dominant on the marginalized and get them to abide it. While the sex trade was allowed to continue, it was limited to the margins, away from the public view.
Sex-work is tolerated, meaning that it is neither legal nor illegal: sex-workers are not committing a crime when they practice privately and independently, but they cannot solicit legally in public. No other profession suffers from such confusion about what is legal and what is illegal, nor is any other worker punished simply because their work is visible to the public. The very fact that sex trade is allowed to flourish privately but is banished the second it enters the public arena shows the State’s intention to keep the profession hidden. The moralistic approach is to protect the public from the workers and not the other way round.
Section 2(a) of ITPA defines ‘”brothel” as a place shared by two or more sex workers for their mutual gain. The broad wording of this definition has in multiple instances lead to sex workers losing their homes under the guise of “closing down of brothels” even if they resided there. Further Section 4 of the Act punishes those above the age of 18 and knowingly live off a sex worker’s earnings. The repercussions of this provision are such that family members such as aged parents and spouses, who might be dependent on them are also made liable. This further implies that their work is not even considered to be legitimate work and the money earned by them is somehow illegal.
The need to protect public morality was so high that even the sight of such immoral activities was banished. An extensive empirical study conducted in Bombay into the implementation of sex work laws showed that the number of arrests of sex workers is far greater than that of pimps or landlords. This is a clear indication that the brunt of sanction is to be borne by the workers in a greater capacity than the organizers of the sex trade. S. 7 and S.8 of the IPTA is the most used provision to monitor the behaviour of sex workers and penalize them for mere solicitation and being within 200 meters of a public place. The word ‘solicits’ as used in Section 8 of ITPA came up for consideration before the Madras High Court. Here, the accused was arrested for being gaudily dressed and offending public decency by giggling and making gestures with her hands. The legislature had failed to give proper definitions to the word ‘solicit’. Therefore, the Court had to fill in the gaps, who ended up doing it in a somewhat paternalistic manner.
So while the intention behind the Act was to arrest traffickers and brothel keepers, in reality, it was the workers who become prey to the police harassment and were made to pay either financially or sexually. The strong unionization of brothel owners and pimps made the workers easier targets who were not organized enough to have such unions and are made to suffer in terms of wages and working conditions.
When tracing the reasons between such discrimination, can point it towards the corruption of state functionaries like politicians and police officers who share a substantial nexus with the brothel keepers and prevent the law from being enforced against them. Also, the lack of sex workers in being potential vote-banks further reduces their utility and increases their abuse.
Due to the lack of recognition of their work, they are prevented from accessing child care facilities, minimum wages or compensation, if anything, their work is made even more informal and dangerous due to police brutality and unsafe working environments. They have been subjected to violence and systematic violations due to the popular perception of them criminals and not citizens. More so, due to the stigmatization and illegality of their work, it prevents them from reporting crimes to the police, in fear of not being believed or getting punished for engaging in illegal activities in the very first place. This often leads to offences like the rape of a sex worker not be reported or registered.
They may have better access to information about instances of human trafficking and exploitation. Still, due to being labelled as criminals themselves, they don’t feel safe reporting such information to the police.
So while sex work may not be explicitly considered illegal per se, the various acts surrounding it like brothel-keeping or solicitation, which are deemed unlawful, make it extremely difficult for sex workers to legitimately carry out their work. Considering these factors are an essential aspect of their job, it so happens that their work also ends up becoming criminalized indirectly.
TRACING THE JUDICIAL JOURNEY:
The Constitutional validity of Immoral Traffic (Suppression) Act, 1956 was challenged in Shama Bai v. State of U. PJ. Here, the accused was a singer and dancer at a bar, and she contested that this Act prevented her from carrying her trade and imposed unreasonable restrictions on it. While holding the Act to be constitutional, Justice Sahai mentioned that the Act balances between fundamental rights conferred in Article 19 with that of the prohibition of trafficking under Article 23 of the Constitution and hence, these restrictions are reasonable. It’s important to highlight here that the reason behind restricting one’s fundamental right was to prevent the greater evil of trafficking from taking place. However, the Act’s usage has been done so that the intention seems wholly displaced from the actual purpose and individual rights are being violated in its place.
The definition of ‘Prostitution’ as furnished by the Court is as follows: ‘A Prostitute is a woman who surrenders her body for monetary consideration to someone not legally entitled to have sexual intercourse with her’. This definition is a clear violation of Fundamental rights as it restricts one to choose their sexual partner as somebody deemed legal by the Court. On the one hand, the Court in the case of Gaurav Jain v. Union of India issued directions to segregate the children of these workers from them, citing the reason that the evil character of these workers could affect the children and on the other hand, Justice K. Ramaswamy observed that all women found in this industry should be treated as victims of gender-orientated vulnerability.
Criminalizing adult, voluntary, consensual and commercial sex is directly against one’s personal autonomy and privacy. Yet, we have the State controlling and telling adults who they can have sexual relations with and how. Such instances of the Court suggest that a sex worker is either treated as an immoral criminal or as an unfortunate victim, but never as a woman worker who exercises her right and autonomy over her body.
THE WAY FORWARD:
The ITPA has failed to fulfil its purpose of preventing trafficking and supporting voluntary sex work. If anything, this system of suppression has only pushed the work underground and further marginalized it. The lack of clarity in legislation and ambiguous judgements regarding the legality of the job, along with the stigma surrounding it makes them prone to violence and vulnerability. The only way forward to accord protection to these workers and uphold their rights is to decriminalize prostitution.
Decriminalizing will lead to the State acquiring the responsibility to manage brothels and can issue licenses and register brothels to authorized people and eliminate pimps and middle-men. They can then formulate guidelines regarding remuneration and medical facilities and require the brothel-owners to maintain a database of the clientele and need them to check if the workers meet the minimum legal age. A higher degree of responsibility should be imposed on brothel-owners by ensuring that their workers are given minimum wages, decent working hours and safer working conditions. This can also help the workers in having open negotiations with the clients to facilitate safe sex. The workers can be required to maintain health-cards and have monthly check-ups which can then help in the detection and reduction of sexually transmitted diseases.
We need laws that offer them equal protection against rape and other forms of violence and finally gave them the chance to turn to rule for their safety and not be punished by it. The police’s role can be made more productive by ensuring that they are there to protect the workers and not to extract bribe-money from them.
The Indian Constitution was founded on the idea of transformative justice, which rejects majoritarian notions of morality and accommodates the diverse ways of life. We need to aim for constitutional consistency, where the same protection can be extended to the marginalized and the excluded.
ITPA is an example of the legislative intervention to support the morality of the ruling class as against the masses and the lumpenproletariat. The dominant social groups have created these ‘criminals’ through years of resourcefulness and landlessness and are now conveniently shifting the blame on them for their deviant behaviour.
The Immoral Traffic (Prevention) Act blurs the line between trafficking and voluntary sex work and is instead used as a mechanism to abuse the rights of the latter. The legislation lacks the vision and direction and fails to do justice to either of them. We need clear and separate laws that deal with the respective topics judiciously, so that sex worker are given the freedom to work, and traffickers are punished accordingly.
We need consistent definitions of ‘trafficking” solicitation’ and other legal terms by the legislature. Along with this, we also need a more robust legislative framework that increases accountability of State and its functionaries. These mechanisms can prevent the harassment of sex workers and give them safer working environments. The stigma is deeply rooted in both the moral fabric of the society and in the minds of one and all.
We need to sensitize police personnel, public prosecutors, and everyone at the community level to be more empathic of their backgrounds and treat them as workers who are merely doing their job. Within this discursive boundary, we systematically find ourselves to be targets of moralizing impulses of dominant social groups and to change this. We need to re-create the narrative and build a safe harbour for our sex workers.