On May 25th, 2022, a Supreme Court bench, which included Justices L.Nageswar Rao, B.R.Gavai and A.S.Bopanna, passed a ruling that recommended that sex workers are entitled to equal protection of the law as long as they are adults who participate with consent. The provisions laid out in this ruling (Criminal Appeal No. 135/2010) have led to strongly opined debates across society. While many have a strong opposition to the term ‘legalisation’ and prefer to term it ‘decriminalisation’, the public debates in this matter have largely concentrated on these two aspects of the ruling only.
According to an order relating to this case which has now been running for about 12 years, a panel was formed which has made most of the recommendations as presented by this ruling. This panel includes Mr. Pradip Ghosh, the Chairman, Mr. Jayant Bhushan, Senior Counsel, Usha Multipurpose Society, the founder and CEO of Roshni Ms. Saima Hasan and most importantly, the sex workers’ collective from West Bengal, Durbar Mahila Samannway which has 65000 members who actively work as sex-workers in India.
It is important to note that this ruling is a temporary one, and the Union of India has been advised to file its response to the recommendations made by the panel within a period of six weeks as the Government of India has certain reservations. This ruling is largely about disabling the police from violently harassing sex workers, empowering sex workers with their dignity in life by ordering that they not be incarcerated any further, and any incarcerated sex workers are released in a time-bound manner, enabling their access to medico-legal aid in the case of sexual violence, upholding Section 354C, IPC which makes voyeurism criminal, increasing policy level participation of sex-workers in decision-making processes relating to them and ensuring that mothers are not separated from their children on the basis of their profession as sex workers.
This ruling is largely about disabling the police from violently harassing sex workers, empowering sex workers with their dignity in life by ordering that they not be incarcerated any further, and any incarcerated sex workers are released in a time-bound manner, enabling their access to medico-legal aid in the case of sexual violence, upholding Section 354C, IPC which makes voyeurism criminal, increasing policy level participation of sex-workers in decision-making processes relating to them and ensuring that mothers are not separated from their children on the basis of their profession as sex workers.
Police violence on sex-workers
The contentious relationship between the police and sex workers in India has been highlighted through various debates, films and literary representations. The ruling outlines, “When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. There have been concerns that the police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with the law.”
The very fact that this had to be spelt out in a Supreme Court ruling indicates the lived reality of sex workers in India. But away from lived reality, the debate around the social validation of sex work as a profession is what is becoming central to conversations regarding the current ruling. While the radical feminist standpoint has been to view sex work as patriarchal violence and any claim made about the sexual agency is deemed to be false consciousness, the sex worker’s point of view has been about claiming economic and sexual agency under capitalist patriarchy (Kotiswaran, 2019).
This ruling has acted in favour of the sex worker’s demands. Dr. Smarajit Jana of Durbar, who passed away during Covid, has been relentlessly working in Bengal to ensure the extension of basic human rights to sex workers in India. This is a fruit of a longstanding struggle to extend basic rights on the part of sex workers and their friends in society.
“The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all the basic human rights guaranteed in the constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.” The fact that, as of 2022, this needs to be outlined on a ruling indicates the deep-rooted nature of patriarchal perspectives within the systems of law.
In essence, this ruling is also about consolidating the position of capitalist patriarchy by bringing into its folds the marginal identities and extending to them the protections and rights of citizens. This may be one way of looking at it. The other perspective involves the realisation that while sex work cannot be banned entirely in the immediate future, a step towards its destigmatisation and lessening of state-enabled violence may come in the form of basic human rights extended to and assured for them as attempted by this ruling. Neither of these absolves the state of the responsibility towards its citizens, a duty in which it has been faltering staggeringly.
Also read: Why Is Sex Work Not Seen As Work? – Part 1
Role of popular culture in enabling incorrect worldviews
The role of popular culture in both the stigmatisation and the fetishisation of sex workers has led to enabling narratives of empowerment, agency and independence becoming the focal point of concern while the reality has always been far removed. Films like Chandni Bar (2001) and Gangubai Kathiawadi (2022) portray police violence, corruption and complicity in protecting the interests of powerful people through the bodies of sex workers. The body of the sex worker is often perceived to be fair game for projects of empowerment, crime and justice. These have all been portrayed in films like Dil, Dosti, Etc (2007), series like Sacred Games (2001), and She (2020).
Irrespective of what narratives the cultural text focuses on, the sex worker’s body and identity are always a pawn — even when the story claims to focus on her. The context of making a pawn out of them largely remains the plot’s focus. This expectation, as created by cultural texts, seems to have captured the public imagination, which is why everyone wants to have sex workers rehabilitated into some form of craft, trade or respectable service instead of letting them live with dignity within their own profession. The fact that this ruling is based on the recommendations of a 65,000 strong sex-workers’ collective does not seem to be the centre of attention for anyone, yet if anything, it is a minor victory along the way for such organisations.
Liberal expressions, violence, motherhood and social stigma
All of this, coupled with the AIDS debates, the Slutwalk talks, the Take Back the Night movements and the always rising number of rape cases, pits different categories of sexually expressing women against each other. Today the queer movement has evolved to the point of accepting so many identities with a difference at the cost of tremendous humiliation, opposition and violence all along the way. This ruling here is a step forward in the sex-workers’ movement in India, which has always received lesser attention due to the contentious nature of its existence and demands.
While some of these movements have been about asserting sexuality, identity and difference, the rising number of sexually violent crimes has been about patriarchy asserting itself in the only way it knows best, through disregard, disrespect and dishonouring of women’s autonomy, agency and bodies. The local level state interventions in many cases of sexual violence have been entirely lacking in the sense of upholding democratic human rights (Badaun, Kathua etc.).
While the most ‘liberal’ among us choose to wear with pride the tag of a ‘slut’ which is an empowering term for women with multiple sexual partners, the most ‘radical’ amongst us see violence in institutionalised sex work. However, the perspective that the sexual agency of a sex worker is false consciousness also appears to arise from the same messiah complex that leads to people assuming that they can ‘save’ the sex worker, an overused trope across various cultural texts.
While cultural texts can only highlight fictionalised versions of on-ground reality, the on-ground reality of police violence upon sex workers cannot be debated. The worst form of psycho-social violence against sex workers comes from the separation of children from their mothers on the basis of their professional commitment to sex work. At a time when the world is focusing on the violence imposed upon women’s autonomy in the form of banning rights to abortion in certain states in the United States of America, this ruling is ensuring that the rights of a mother to her child and their dignity of life is upheld.
Just as a foetus is not more important than the body bearing it to term, a body that has borne a person to term should be allowed the dignity of safe motherhood, something that the state machinery in India has denied in many cases. This is enumerated in the ruling as, “As already recommended in the 6th interim report dated 22.03.2012, no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade.” This ruling only attempts to legally ensure the rights of humans to exist without the social sanctions imposed upon them due to stigma.
To ban or not to ban sex-work
Banning of sex-work is a process, which has been attempted by systems in places like Switzerland, where the buying of sex is criminalised as opposed to the selling, but it is now that the Indian capitalist patriarchal systems have come to terms with the idea that there exists a difference between the moral debates regarding sex work as a profession and the human rights of sex-workers. This ruling highlights and acts upon that realisation.
However, the debates in India seem to revolve around the dignity in sex work, its validity, and the social acceptance of sex work as a profession. As soon as various media outlets started reporting on the line of ‘sex work has been legalised’ (Firstpost, The Telegraph, Deccan Chronicle, India Today, etc.) a general standpoint by people looking to uphold the moral standards of society was that the ‘privileged’ feminists are making a furore about sex work being legalised wherein it should ideally be banned.
Arguments like ‘sex work cannot be a consensual profession’, and ‘sex work is about the objectification of women’ has become the main go-to argument for naysayers in this case. Yet, almost everyone seems to the missing the point that this temporary ruling, which may very well be overturned in 6 weeks’ time, focuses not on legalisation but mostly on the protection of human rights and upholding the constitutional rights guaranteed to every Indian citizen. Moreover, it is worth noting that it is the same Supreme Court which has ruled in favour of the party that leads the GOI in a number of cases in the recent past, the most notable of these being the Babri Masjid demolition.
So, which criminalisation does this ruling focus on?
If there is any kind of criminalisation that this ruling is harping on it is the criminalisation of voyeurism. The ruling mentions, “vi) The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in the disclosure of such identities. Besides, the newly introduced Section354C, IPC, which makes voyeurism a criminal offence, should be strictly enforced against electronic media in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.” This directive clearly outlines that voyeurism done by the state infringes upon the dignity of sex workers and criminalises any such action. Yet, this point has hardly been the focus of any media article or public debate so far.
Other recommendations in the ruling
This ruling which is focused on the development of the lives of sex workers and has been passed through a panel which included a sex-worker’s collective, has a few other important points to take note of, and these include, “Whenever there is a raid on any brothel, since voluntary sex-work is not illegal and only running a brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.”
This stresses the penalisation of the structures which make sex work violently oppressive in India, where the business model of sex work favours the owners and the people running it rather than the sex workers themselves. This ruling disempowers the elements whose nexus wreaks havoc on the lives of sex workers, the police, the brothel owners and traffickers. “The state governments may be directed to do a survey of all ITPA Protective homes so that cases of adult women who are detained against their will can be reviewed and processed for release in a time-bound manner.”
A common harassment tactic in the past by the police has been to keep sex workers forcefully detained in these adult homes. It is the fear of this which has been used by brothel keepers to keep the women in line as well. “Measures that sex-workers employ for their health and safety (e.g. use of condoms, etc.) must neither be construed as offences nor seen as evidence of the commission of an offence.” In a country where the discovery of condoms in a public university led to much uproar and character assassination of university students, it appears to be important that the destigmatisation of sexual health practices is done in this manner. The ruling also ensures that National Legal Services Authority, State Legal Services Authority and District Legal services authority are all directed to carry out workshops which educate sex workers about their rights.
“Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.” The trafficking concerns that this issue revolves around in most ivory towers where this issue is touched upon are also addressed within this ruling. Overall despite the precedence of rulings set by the Supreme Court in recent years, this ruling has taken the demands and recommendations made by sex workers seriously and acted upon them.
The change in the lived reality.
While the question of whether sex work is morally right or wrong will remain an ongoing debate, this ruling is a step forward in securing the basic human rights of sex workers in India. The camps of ‘sex-work is work’ and ‘sex-work is a violent outcome of capitalist patriarchy’ may never see eye to eye, but sex workers will probably breathe a little easier from this point on. If anything, this ruling has extended the right to deny consent without fearing action from solicitors, police or wayward clients to sex workers in India. When sex-workers’ complaints of rape are considered openly in a ruling and the police are directed to take it seriously, and medico-legal aid is assured to them, a step towards dignified life is ensured for the women who do sex work. This ruling is a step along the way in the evolution of sex workers from marginal identities to upstanding citizens of the country.
Utsarjana is a PhD researcher working on select Denotified Tribes of India at BITS Pilani, Goa Campus and has done projects at Jadavpur University Kolkata on Child Marriage in West Bengal and Bar Dancers in Kolkata. She has travelled extensively and has worked as a lighting designer on various Theatre projects. She is an activist member of the initiative called Rokeya Shikha Kendro run by the team at Humans of Patuli, in Kolkata. She writes on gender, theatre and politics. She is always busy living her life on her own terms. She can be found on Facebook.
Featured image source: openDemocracy