by Gayatri Kasibhatta
The Supreme Court bench of Justices of L Nageswara Rao, BR Gavai, and AS Bopanna held that sex workers have the protection of fundamental rights under the Indian Constitution and this protection extends to the children of sex workers. The judgement was hailed as a remarkable victory by the liberal gurus in the media, however, it is necessary to examine the status of sex work in the contemporary legal landscape.
A recent Supreme Court judgement unequivocally recognised sex work as a profession and stated that sex workers deserve equal rights and protection of the law. It is important to understand this judgement’s impact in reference to the anti-trafficking laws and existing criminal law. The existing Immoral Traffic (Prevention) Act (1956) criminalises advertising of sex work, penalises people who live on money earned through sex work and prohibits operating or working in a brothel. These are among many restrictions posed to sex work. Though the judgement recognises sex work as a profession it makes no changes to the law that allows people to pursue it as a profession thereby, continuing to condemn sex workers to harassment by police and live under the looming threat of imprisonment or worse. This article examines the location of sex work in the existing anti-trafficking framework and how it further marginalises sex workers than liberates them. Furthermore, the article examines the road to decriminalisation that is still under construction.
Equating Sex Work to Trafficking
The legal definition of ‘prostitution’ is embedded in the moral idea of what is the right kind of work. It can be traced back to sex work being conflated and used interchangeably with trafficking. This propagates the idea that sex work cannot be a choice. Sex workers must have been coerced or forced into sex work thus they should be liberated from inhumane working conditions. Sex workers (often women) are expected to have no agency and are infantilised by a paternalistic state that dictates what profession they must be in. After all, why would a woman choose sex work? A study involving 500 bar dancers (which is seen as indirect sex work) in Mumbai after the government banned bar dancing illustrated that many of the dancers entered the labour force in professions other than sex work first and later chose to enter the sex work industry. Another study on workers in the textile industry reveals that many workers do sex work in addition to their factory jobs.
“One person, one occupation” does not represent the economic reality of women in India. Many women in the agriculture sector, construction sector, textile sector, care and domestic work sector also do sex work as an additional job to increase their income given the latter’s flexibility in determining work hours and where to do the work. This is also the reason why sex workers rally for decriminalisation as opposed to legalization as the latter would involve the state regulating the profession, thereby dismantling the flexibility it offers. Placing restrictions on all facets of sex work except sex work itself forces sex workers underground into dangerous environments with little to no protection from violence. Also, they cannot negotiate payment as such criminalised work tends to be lower paid and workers are ill-treated with no legal remedy available to them. Reducing sex work to trafficking stigmatises sex work thereby putting them in physical danger from community violence and police violence in addition to causing economic distress. Carceral feminism was influential in introducing legislation that heavily rely on criminal infrastructure to champion women’s rights such as harsher punishments for sex abuse offenders and criminalisation of sex work. Such legislation does not address the root cause of violence against women and instead further marginalises women.
Though prostitution is considered one of the oldest professions it struggles to gain recognition against other undesirable jobs such as sanitation work. One argument is that undesirable jobs such as sanitation work are necessary services in society. However, it has been argued that sex work is also an essential service. Women perform socially necessary reproductive work. Such work includes but is not limited to cleaning, cooking, producing children, and caring for children and the elderly is located within the domestic realm. Such work is not recognized as labour and is unpaid when performed by women. Sex is part of this necessary domestic work. However, in a patriarchal society sex is permissible only within a heterosexual marriage with one’s husband. The devaluation of sex work is due to moral policing of what kind of sexual labour is permitted and is further reinforced by the patriarchal notion of what work ought to be recognized. Patriarchy renders work that prominently employs women as low status thereby paying such workers low wages and subject to inhospitable working conditions. Through a moral lens, socially reproductive labour such as sex work is stigmatized and disqualified as ‘labour’.
However, in a capitalist economy, physical labour can be given in exchange for wages. Katie Cruz in her paper investigating sex work from Marxist Feminist methodology defines sex work as monetization of labour to sustain, take care of well-being, survival, and reproduction of humans which she calls ‘socially reproductive labour’. Such labour is delegitimised for being performed by women thereby subjecting them to poor pay to the point that bulk of the socially reproductive labour that takes place in the private sphere (domestic work) is unpaid. The agency of a sex worker to give sex to a customer would amount to physical labour that ought to be remunerated. Bar dancers, strippers, phone sex services, and porn amount to labour which ought to be remunerated. Stigmatising sex work denies sex workers a political voice in the women’s rights movement. This handicaps their fight to improve working conditions. When the government refuses to recognise sex workers’ right to choose sex work, they also ignore their voice when asking for legal protection from systematic institutional violence by police.
Decriminalization: Road Under Construction?
Brothels are illegal so where should sex workers conduct their business? Doing sex work in the open (often near highways) attracts the risk of police violence. Doing sex work at the client’s place puts the worker in a vulnerable situation thereby making it difficult to insist on the customer wearing a condom or negotiate payment. This illustrate how far we are from decriminalising sex work to make it a safe profession for women and men alike. Sex work in India must be understood in the context of the demography of sex workers. Most of them are women who belong to socially and economically depressed classes. They must negotiate power dynamics with the client and the carceral system that is skewed to be harsher towards them than socially and economically dominant classes. Decriminalization of sex work recognizes sex workers’ human right to privacy and freedom to pursue a profession of their choice and to freely express themselves. Dismantling criminal law against sex work would remove the threat of police intimidation and stigma thus encouraging sex workers to have better access to justice, healthcare, and social services.
Sex work is not intrinsically violent; it is criminalization that forces sex workers to go underground thereby exposing them to dangerous circumstances. Also, criminalization would mean that sex workers would have permanent records of their arrest which would expose them to discrimination in all phases of life- they would be denied jobs, loans, rent or sale of a house, and scholarships. This also trickles down to harming the future of the children of sex workers. Decriminalization translates into better access to health care programmes and better financial support for sex workers. Criminalization makes it harder for sex workers to openly convince customers to use condoms. Sex workers run a higher chance of being arrested if they are seen negotiating condom use in public. This discourages both sex workers and customers from using condoms, especially street-based sex workers who are frequently most at risk of contracting HIV. Because of this, several police forces throughout the world have chosen to stop using condoms to prove sex workers are involved in prostitution. Decriminalization would encourage sex workers to prioritise the use of condoms and better protect their health.
Better financial support further strengthens the prospects of the future of sex workers and their families. Sex workers can also unionise and collectively address pressing issues in the community in a political forum. They will have a legitimate political voice in matters of discrimination, sexual violence against women and HIV/AIDS prevention programmes.
The apex court has recognised sex workers’ right to do sex work and has stated that sex workers as per article 21 have equal protection of the law and cannot be subject to any harassment by the police or any other state institution. However, when placing this judgement in the social context of stigmatised reproductive labour and anti-trafficking laws, it is evident that the legal framework commences punitive action against all aspects of sex work except the sex work itself. Such a legal framework rooted in carceral feminism, and the patriarchal notion of reproductive labour marginalise women by devaluing their agency and further silences their political voice. It is necessary to amend the Immoral Traffic (Prevention) Act, 1956, to allow sex workers to conduct business in a brother or similar places, safely on their own terms to avoid exploitation and violence that is endemic to the criminalised labour market. Such an amendment would also extend a host of rights to sex workers that allow them to lead healthy and safe lives with dignity.
Author’s bio: Gayatri Kasibhatta is a third-year law student at Jindal Global Law Scool, Sonipat. Her interests include exploring gap between law in books and experience of law in daily life and is currently, a columnist at Center for New Economic Studies.