The profession of sex work is fraught with ambiguities. Considered the oldest profession in the world, it has been historically driven by women and transgender communities and , is perhaps the most laden with prejudice. It is difficult to date the emergence of prostitution as an industry in India, but given its prevalence in every part of the country, especially in urban areas, it is indeed widespread. Within the Indian legal system, prostitution is not considered illegal – it permits sex workers to practice their profession privately through the Immoral Traffic (Prevention) Act, 1986, or the ITPA. But it criminalizes brothel-keeping, living on earnings of a prostitute, procuring, inducing or detaining a person for sex work, prostitution in areas near public places and soliciting. Despite their illegality, all such activities are closely linked to the profession and continue to exist on a large scale. Most of Indian society continues to be driven by the patriarchal discourse on sexuality, wherein, an individual becomes socially devalued if sex becomes a part of their identity. An unnerving dichotomy prevails because on one hand sex workers are “othered” and on the other, they have massive clienteles across economic strata. In this article, I discuss how societal stigma and morality influence legal proceedings and outcomes with regard to the welfare and sexual violence against sex workers in India.
The Constitution of India has enshrined fundamental rights for all its citizens. However, there exists a gap between the Constitutional Rights and the realities on the ground. A number of socio-economic barriers restrict individuals from accessing justice. This is particularly true for marginalized sections. Sex workers, the majority of whom are women and from the LGBTQ+ communities are particularly vulnerable. The moral lens attached to sex work further accentuates these barriers. Studies confirm that both categories of sex workers – adult consenting individuals who function in the industry under the legal term of prostitution, and those who are trafficked for the purpose of commercial sexual exploitation, face inherent sexual violence. In addition, women who were relatively inexperienced in the sex-trade had significantly higher odds of being forced to have sex and perform unwanted sexual acts by clients.
Voluntarily giving consent and setting boundaries are central to sex work. Physical, sexual, and psychological violence as well as financial discrimination against sex workers is rampant. The growing visibility of transgender and male sex workers in the industry has also made them extremely vulnerable to violence and harassment due to dominant ideas of masculinity and heterosexuality. Forms of sexual violence against sex workers include rape, gangrape, physical or mental coercion to engage in sex or sexual acts against their will or acts that they consider degrading or humiliating. In spite of the aforementioned, the Indian legal system has failed to ensure significant protection for sex workers. In light of this, one might be tempted to question why sexual violence against sex workers is treated differently from sexual violence against others. It also raises pertinent questions regarding their safety and socio-economic wellbeing. The image of a sex worker is constructed with ideals of “availability” and narratives that revolve around the notion that “If they have consented to multiple partners or commercial sex, they have given up the right to refuse other partners or other acts”.
Through the Immoral Traffic (Prevention) Act, an amendment of the Suppression of Immoral Traffic Act (SITA) (1956), India follows the tolerationist approach to sex work. In other words, “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 legally they cannot solicit in public”. The current policies on sex work ensure that services provided by sex workers are publicly inaccessible. This makes it clear that laws and regulations are more concerned with morality rather than the socio-economic wellbeing and safety of sex workers. Moreover, the ITPA primarily imparts penal sanction for sex trafficking and provides the opportunity for rehabilitation of individuals coerced into this sex industry. The Act, however, “provides major loopholes in the protection of rights of commercial sex workers” thus giving more scope of harassment and abuse onto the service provider.
Historically, the law and lawmakers have possessed tendencies to cater to subjective moralistic attitudes of what is ‘right’ or ‘wrong’ and ‘good’ or ‘bad’. This was highlighted in a Supreme Court judgement, Raja v State of Karnataka where the Court acquitted four people accused of rape by relying exclusively on unsubstantiated allegations about the victim supposedly being a sex worker. The judgement further went on to state that, “The medical opinion that she was accustomed to sexual intercourse when admittedly she was living separately from her husband . . . the medical evidence . . . belies the allegation of gang rape” (Supreme Court Judgment, 11th October 2016). It is unfortunate, to say the least when the highest legal institution is governed and dictated by morality that finds its footing in the “good” and “bad” woman dichotomy. Oftentimes, the language used by lawmakers is crass and reeks of misogyny. This also proves that if one’s so-called identity (as alleged by the offenders) is linked to sex work, it is very difficult for people to treat sexual violence against a sex worker as violence against a human being. In yet another discriminatory ruling, on October 12 2016, the Supreme Court of India declared that “a sex worker cannot file a case alleging rape if her customers refused to pay her” after availing of her sexual services. While adult consenting sex workers claim that they offer their services with consent for monetary gain, this appalling ruling raises questions about the standing of the law with regards to minors who may have been compelled to practice sex work because of circumstances.
The acknowledgement of sex workers facing sexual violence within policy-making was further highlighted in 2013, in the aftermath of the horrifying rape case in Delhi, popularly known as the Nirbhaya case. Justice JS Verma Commission’s recommendations for the protection of women and the LGBTQ+ community from sexual and other kinds of violence did not address the multiple forms of violence routinely faced by sex workers. The Verma Commission further recommended amendments for Section 370 of the Indian Penal Code which deals with the offence of “buying and disposing of any person as a slave”.The report initially failed to differentiate between human trafficking and with those who consent to sex work. Meena Seshu, a sex workers right’s activist, disappointed with the report asserted that the recommendation failed to differentiate between ‘coercive prostitution’ and prostitution thus enhancing the criminalisation of sex workers. She further stated that the Commission wrongly interpreted the meaning of ‘exploitation’ under the UN Protocol (2000) thus endangering already vulnerable sex workers instead of protecting them from sexual exploitation. Consequently, the Commission provided a clarification that the amended Section 370 IPC was to protect women and children from human trafficking. They also recognized the distinction between individuals who are trafficked for commercial sexual exploitation and adult individuals who practice sex work of their own volition. While it is commendable that a government appointed commission issued a clarification regarding this distinction, it still highlights the apathy towards sex workers.
Barring the legal institutions, sex workers routinely face negligence and harassment by the police as well. They have reported that the police oftentimes turn a blind eye to complaints of abuse reported by them. They are also consistently threatened to abandon their ‘immoral’ work and settle matters ‘amicably’. This victim blaming attitude results in additional trauma for sexual violence survivors. Additionally, they suffer abuse at the hands of the police in numerous ways, including coercion to comply with sexual favors, verbal abuse and torture within custody. Despite having a tolerationist approach to sex work, laws and law enforcement agencies have constructed a criminal and pathological representation of sex workers due of subjective morality and the stigmatization of sex work. This enables individuals in positions of authority as well as the general public to dehumanize sex workers. Besides having a severe impact on their mental and physical health due to this mistreatment, societal stigma has also made it difficult for sex workers to seek regular health check-ups.
In addition to the blatantly discriminatory laws, government acts and schemes for the underprivileged also turn a blind eye towards them. Currently, in the middle of a pandemic and economic crisis that has resulted in extensive losses of livelihoods, the Prime Minister’s COVID-19 Fiscal and Stimulus Package focuses on uplifting the poor and the underprivileged both in the organised and unorganised sectors. Sex workers, however, do not find a place in this elaborate financial package. Loss of clientele, owing to a complete lockdown (still imposed in the containment zones) has tremendously dented their income. Commercial sex workers in Mumbai, Kolkata, and Neemuch (Madhya Pradesh) reported that they received no assistance from the government.
The Finance Minister, in response to the pandemic, announced several financial packages to support people in informal sectors. These include the doubling of ration under the National Food Security Act, the Garib Kalyan Yojana, a financial package donating INR 500 per month to the “Jan Dhan Yojana” bank accounts and Ujjwala Yojana. None of these schemes appear to acknowledge sex workers since a majority of them do not have a Jan Dhan account or even basic identity proof documents such as an Aadhar number that would help them avail the benefits of government relief packages. This is due to their lack of proof of residence as a majority of them reside in brothels and renting a premise for sex trade is a criminal offence. A majority of commercial sex workers also do not have a bank account because and sustain themselves through liquid cash due to the highly informal nature of their profession.
At a time where providing financial relief packages as well, alternative job opportunities to commercial sex workers are needed more than ever as physical distancing is a privilege and not very inclusive of marginalized communities such as this one, the government has yet again provided no assistance. The distribution of masks and dry ration to 1500 sex workers in Sonagachi, announced by the Ministry for Child Development and Social Welfare of West Bengal in is one of the few and only instances of government assistance for sex workers during the pandemic as of March 2020.
The Joint United Nations Programme on HIV/AIDS proposed guidelines for countries to “take immediate, critical action . . . to protect the health and rights of sex workers”. These guidelines include: “access to national social protection and income support schemes . . . [and] emergency financial support for those facing destitution.” There is still no indication that the government has attempted to implement these, thus, highlighting the government’s negligence towards sex workers. The existing norms, socio-economic, political, and legislative contexts and practices in India have reflected why despite being a significantly vulnerable community, sex workers are more often than not pushed to the margins. The parallel functioning of societal stigma and morality, its influence on legislative procedures, and the government’s inaction compel one to think of the different ways in which sex workers have been denied basic human rights.
Nayana Vachhani is currently a third-year undergraduate student of Psychology and International Relations at Ashoka University.