Decriminalisation of Sex Work:

Renewed Optimism in India

Amritananda Chakravorty

Law on Sex Work

Immoral Traffic (Prevention) Act (ITPA), 1956: enacted after UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949)

Influenced by the British law on sex work, ITPA criminalises brothel keeping, living off earnings of sex workers by persons above 18, procuring and recruitment in prostitution, prostitution in public places, soliciting and orders rescue and rehabilitation of sex workers

However, sex work per se is not illegal

Implementation of ITPA

Failed to prevent trafficking

Though it intended to protect women, most of the arrests were against females while the complainants were males.

Major impediment in HIV prevention and public health intervention efforts

Constitutional Challenges to ITPAValidity of provisions regarding living off earnings

of sex workers (s.4), closure of brothels (s.18), removal of prostitute on magistrate’s order (s.20) were challenged on the following grounds:

Interference with freedom of trade (Art. 19(1) (g); Breach of freedom of residence(Art. 19(1) (e),

movement Art. 19(1) (d); Imposing arbitrary procedures (Art. 14); Violation of equality before law (Art. 14)

Most of the challenges were rejected on grounds of public interest, public morality, public order, etc under the name of ‘reasonable restrictions’ [Begum & Anr. v. State (AIR 1963 Bom 17), Shama Bai & Anr. v. State of UP (AIR 1959 ALL 57), Sahyog Mahila Mandal v. State of Gujarat (2004) 2 GLR 1764

Sex Workers and Law Reform

Individual cases filed by sex workers in pre-collectivisation era, w/o the backing of community groups

Community mobilisation and collectivisation of sex workers got spurred in last 2 decades in the context of HIV prevention

Articulation of demands (‘sex work as work’, ‘repeal ITPA’, etc) were made as political demands/slogans

Did not translate into legal claims for rights or reform (legislative/judicial spaces)

Government initiates amendments

ITPA Amendment Bill, 2006 introduced in Parliament

Features a) expanded definition of ‘prostitution’ to include nearly all transactional sex

b) introduced a new offence of trafficking in persons-vague phrases like ‘abuse of power’, ‘position of vulnerability’ lacking legal meaning

c) penalisation of clients found in brothels: knowledge and intention did not matter

d) decriminalised soliciting

e) allowed lower ranked police to arrest and raid (Inspector to Sub-Inspector)

Sex Workers resist… Sex Workers’ groups unite to fight back

Lawyers Collective organised several consultations to strategise with sex workers’ community at all stages of the amendment process

Sex workers got engaged in the law and political reform process: meetings with key ministers, submissions before the PSC (parliamentary standing committee), advocacy with policy makers, etc

By critiquing the bill on legal, public health and community rights’ grounds, we succeeded to create dissensions within the govt

Bill lapsed in Feb, 2009

Renewed Optimism…

Delhi High Court judgement in Naz Foundation’s case decriminalising adult consensual same sex behaviour in July, 2009 created optimism amongst sex workers’ to claim rights

Naz Judgement made ‘constitutional morality’ based on inclusiveness and integrationist tenets of constitution the standard to judge the compelling state interest in restricting rights

Started thinking of mounting constitutional challenges to certain ITPA provisions

Scope for fresh Constitutional Challenge Through community consultations, following areas of challenge

have been identified:

Involuntary Detention of adult women in rehabilitation homes

Arbitrary raids and rescue procedures by police, media, etc

Prohibition on living off earnings of sex workers by adult dependents (old parents, children above 18, etc)

Consultations have sharpened sex workers’ capacity on law and policy

However, absence of positive jurisprudence makes decriminalisation of sex work through judicial interventions difficult

• In Jordan v. State [Constitutional Court of South Africa (2002)], “Legal response to sex work is a matter of governmental policy expressed through legislation rather than one of constitutional law to be determined by the courts”

ITPA Amendments are not DeadApart from judicial interventions, sex workers are

constantly battling the threat of client criminalisation

Govt. is again deliberating on the previously critiqued ITPA amendments and wants to re-introduce them in parliament soon

Considering the wave of client criminalization sweeping Europe currently [Finland (2006), Norway (2008), Iceland (2009), UK (2009)], it seems a plausible solution to govt, being influenced by anti-trafficking groups and radical feminists

Sex workers are gearing up again to mobilise and campaign against the impending amendments, if needed

Adverse Laws – Catalyst for Empowerment

Adverse laws provide an opportunity for communities, otherwise excluded, to challenge disentitlement & claim legal rights

Sex Work law reform, whether through judicial or legislative means, has to be designed and led by the sex workers’ community

Irrespective of outcome, the process of engaging with law reform itself is empowering and significant