“Sex work is work.”

“My body, my right.”

These are two slogans which aptly capture the decriminalization debate regarding sex work/ prostitution by adults.

Decriminalization has two dimensions:

1.Legalization of something that has been a crime

2.Removing barriers which may prevent persons from doing something that they have a legal right to do

Legalizing

In the context of sex work, legalizing sex work is not very relevant as adult sex work is not considered a crime. Thus if a woman, or a man for that matter chooses to do sex work, he/ she is not considered a criminal. This is the current position of the law in India.

Earlier, the position was different. Sex work or prostitution was considered a crime and women who engaged in it were considered criminals and punishable. Gradually, an understanding developed about the vulnerability of women in sex work and the focus of criminalization shifted from treating sex work by itself as a crime, to punishing the exploitation of sex workers.

In other words, the focus of crime shifted to trafficking as crime. The punishments for trafficking existed under the general criminal law- i.e. the Indian Penal Code, as well as the Immoral Traffic Prevention Act, 1986 (ITPA). This penalized buying and selling of human beings within and outside the country as well as living off the earnings of sex workers.

Removing barriers

However, although sex work by itself is no crime, there are barriers which prevent persons from engaging in sex work. These include provisions in the law itself which prohibit soliciting in a public place. How is a sex worker to ply her trade without some form of soliciting? This is the section that many sex workers are booked under. It makes them extremely vulnerable.

Even though soliciting is very difficult to prove, sex workers are routinely arrested, harassed and exploited by the police even though they have not been caught in the actual act of soliciting. This provision in law makes them vulnerable to brutality and further exploitation and human rights violations.

Also, when a sex worker is picked up, her children also become vulnerable in her absence. She also stands to lose her anonymity. Many women may take up sex work without their families knowing. If she does not return home, they become suspicious. It is for this reason that many suggested statutory amendments have advocated a removal of Section 8(b) which makes soliciting a crime. We will look at how Section 8 impacts men, women and transgenders in a short while.

Sex work part of society

In Karnataka, as in the rest of the country, sex work has taken place since time immemorial in several ways. There was the devadasi tradition where a young girl was dedicated by her family. Although this tradition has been outlawed by the Karnataka Devadasi Act of 1982, yet the practice continues in some parts of the State. Also evident is the Jogappa tradition in a similar vein with men. They form the minority transgender community in North Karnataka and some parts of Andhra Pradesh.

Other than the devadasis and jogappas, other adult sex workers have also been there.  Brothel bases and street-based sex work are common in many urban areas of Karnataka including Bangalore.

While one is not for a moment supporting the dedication of young girls, the fact remains that many adult devadasis continue to make a living through sex work and wish to do so. Pushing for criminalizing sex work or trying to force rehabilitation on an unwilling woman are violations of her right to exercise agency- to be an independent agent making her own decisions.

Unworkable alternatives

The reason why sex work is frowned upon by society is because of notions of morality. This has at times been combined with fears of venereal diseases in the 1800s and HIV/AIDS now.

Some countries like Sweden have criminalized sex work by penalizing the client and not the sex worker. This also is not a good trend and has come under severe criticism for its non- removal of barriers. There is always the real fear that if clients are penalized sex work will go underground and sex workers will become more vulnerable. Besides, penalizing the client treats sex work as a crime, which it should not be.

Rehabilitation, sometimes forced is not an alternative that respects sex workers’ rights. The way to prevent exploitation is not to forcibly remove women from sex work, most women do not want to leave. Rehabilitation can only be voluntary as laid down by the Supreme Court in Buddhadev Karmaskar’s case.

Some abolitionists as they are called who advocate criminalizing sex work claim that every sex worker is exploited, whether they are trafficked into sex work or take up sex work due to the lack of other economically viable options. This may be true, but this is also true in other work like domestic work. While there is no excuse for trafficking and traffickers if caught should be penalized, the burden should not fall on the woman.

Thus, she should not be forced into a home, to wait for years while the cases against the traffickers go on and she should not have to face violence and humiliation from those that represent the State. Whatever be the reasons that she chose this work, we must not judge her, and more importantly, not place barriers around the work that she now chooses to do.

Consensual sex and sex work

As of today, several forms of consensual sex continue to be punishable offences. These include two laws which impact women, men and transgenders. The first is the Immoral Traffic Prevention Act, 1956 which in Section 8 makes soliciting for the purpose of sex work a crime if it is in a public place. The punishment is higher if the person soliciting is male. Street-based sex work uses soliciting to find customers. While there are also internet-based service providers, not many sex workers or their clients have access to them. There have been cases where customers have been fined along with the women for engaging in a consensual act. Such penalties are not lawful if we keep in mind the fact that sex workers do work.

The other law which impacts both transgenders and men, and also women who are in sex work is Section 377 of the Indian Penal Code, 1860. Section 377 views certain acts of intimacy between sexual minorities and others as illegal, even if they are between consenting adults. It penalizes most forms of sexual intercourse which are non penile-vaginal. Section 377 reads “Unnatural Sexual Offences- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine”.

Section 377 while vague in its words has been read in times of the British and thereafter to include consensual acts which are not penile-vaginal. These could include homosexual acts between men and also sexual intercourse between men and others (including women and transgenders) which are not penile-vaginal, for example oral sex or anal sex. Thus, a transgender sex worker would be liable to prosecution unless such acts are decriminalized.

Unfortunately, although consensual same sex relationships was decriminalized by the Delhi High Court in Naz Foundation v Union of India (2009), it was recriminalized as it were by the Supreme Court in Suresh Kumar Koushal v Naz Foundation (2013). However, the Supreme Court in National Legal Services Authority v Union of India (2014) dealing with the Transgender Community has said in para 19 “Gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person”.

Due to social prejudices and stigma, transgenders often depend on begging or sex work for a livelihood. Section 377 deeply impacts their livelihood chances by criminalizing the work they do.

Decriminalizing sex work in the context of sex work involves an undoing of these British guidelines, and though laws including the Immoral Traffic Prevention Act have reformed, they are not in tune with Constitutional guidelines.

Towards collective law-making

When a law is made, those affected by the law must be consulted. Sex workers are rarely consulted on issues of law and policy which intimately affect their interests. The demands of sex worker groups as a whole are the decriminalization of sex work. They claim this as a Constitutional right available to all citizens. They have every right that any other citizen of India does.

Sex worker groups have collectivized all over the country for campaigning for their rights. They are not a small group. The Durbar Mahila Samanwaya Committee (DMSC) also called Durbar, meaning unbeatable in Bengali, is an association of 65,000 sex workers in West Bengal. They have helped their members access important rights as citizens including voter IDs, ration cards, bank accounts and so on.

Community Based Organizations (CBOs) in Karnataka too have been formed to the improve conditions of sex workers and to address their issues. These groups vastly outnumber the voices calling for abolition. And certainly their voices are the ones we must hear as if decriminalization does not happen, their rights will continue to be denied. Abolition does not change the situation, it is wishful thinking that it will. Abolition will not end prostitution, but it will end sex workers rights.

The Varma Committee in 2012 after the Nirbhaya case suggested far reaching amendments in the law. The committee proposed changes to the trafficking law as well as the definition of trafficking. The present definition in Section 370 of the Indian Penal Code states that the consent of the victim is immaterial, if there is exploitation. This, with the moral overtones to sex work, makes it vulnerable to be judged as exploitative.

According to the All India Network of Sex Workers (AINSW) this creates settings for further exposing sex workers. It takes away from them the right to agency, to decide to do sex work. Sex workers collectives were not consulted in this lawmaking process.

The International Labour Organization (ILO) reports the susceptibilities that sex workers encounter. In August this year, the Amnesty International passed a landmark vote to protect rights of sex workers and called for decriminalization of consensual sex.

The trend in human rights law seems to be that consensual sex among adults must be protected, for payment or not.

The opinions expressed in this article are those of the author and are no reflection of the views of Karnataka Today.

(Dr Sarasu Esther Thomas is an Associate Professor at the National Law School of India University, Bangalore where she coordinates the Centre for Women and the Law, and the Human Rights Lawyering Project. She teaches courses on Family Law and Gender, Human Rights and Law. She wishes to acknowledge the assistance provided by Naira Dar in working on this piece.)

(This article was published in the recent issue of Karnataka Today Magazine)