The Sex Worker Predicament: A Silent Wail
THE SEX WORKER PREDICAMENT: A SILENT WAIL
- Sanighdha S
“Slavery still exists but now it applies only to women and its name is Prostitution.”
– Victor Hugo
“Living in the most jilted corner of the forgotten town; renounced for choosing a way of life that she can own as her own; disavowed for practicing an unacceptable but an ancient, now shunned custom; gazing through an inaccessible, small over-the-top grilled window with her dreamy eyes all teary and dreary; finding solace in her own marooned loneliness while caressing her apostatized and abjured yet pure soul; holding onto whatever little means she is now left with- here’s a sex worker, a prostitute of our very own stereotypical society; wanting no pity, no shame, no recant but, a little respect for the life that she has lived her own chosen way.”
Introduction:
While most of us are now over the perils and frights of Coronavirus, and have started going to our workplaces once again; there are still some people who haven’t yet got the chance to get over the very first economic and social turbulence that this pandemic caused. These people for whom the present scenario is an incomprehensible nascent milieu, include-migrants, domestic workers, contractual labourers, et al. The Central and state governments have completely and efficiently channelized their administrative machinery towards tackling these chaotic times and have respectfully, succeeded in the same. Making an order out of the topsy-turvy diegesis created by the virus was undoubtedly a mammoth task but, rolling out specific schemes and relaxations measures for these hard-hit communities of our society, played out well on a socio-economic front. However, there is one class of workers that missed everyone’s emphatic gaze. Undeniably they are the sex workers or the prostitutes, who have been specifically finding it extremely arduous to make both ends meet. With no physical interaction with their regular customers, there is no way they can get paid. With no particular scheme or plan for their doomed business amidst these trying times, the sex workers of our nation are living a life less imagined. Many of the prostitutes have kids whose education is now imperilled. Their ‘worthless’ lives are now juxtaposed against the devil of misery, deprivation, poverty, indigence and death itself. But do we really care?
A Historical Review:
Prostitution is formally defined as, “the practice of offering sexual intercourse in return for pay.”[1] Considered as the world’s oldest profession, prostitution was once the most respected one as well. A profession of choice, prostitution is often confused with human trafficking due to an upsurge in the latter illegal practice which led to the coercive entry of women in the former. However, the conundrum surrounding the difference between human trafficking and the ‘euphemistic terminology of prostitution’ must be blown away; as prostitution is what an independent woman chooses to do and human trafficking is what one is forced or manipulated into. Other reasons for entering into the profession may include-economic distress, social abandonment or psychological factors.
One of the earliest traces of women practicing prostitution as a sacred ritual is found among the Sumerians, followed by the Babylonians- who considered it as a tradition needed to be followed by each woman, atleast once in her life. [2] This was followed in many of the ancient civilisations like Greece, Rome, etc. It must not come as a surprise that even India (18-19th C.) had a custom of prostitute women or tawaifs, one that was considered to be a symbol of nobility.[3] Prior to that, in the times of Chandragupta Maurya and his chief advisor, Chanakya- prostitution was a profession well known. Sex workers (Ganikas) were specifically mentioned in the Arthshastra and their maintenance process was well elucidated in the same- pointing out to the fact that prostitution was earlier legalised and regulated as well.[4] Rambha and Urvashi are well known names of apsaras, or rather the divine prostitutes.[5] Devdasi system, followed in ancient, medieval and even the modern is another example of prostitution. [6] Determinatively, it can be understood that no matter how much we criticise it or how voluminously we discard our ancient societal component; one cannot deny the very existence of the same, because it is bound to continue for the times to come as well.
Jeopardised Sex Workers in the Present Scenario:
With no sign of any relief, the sex workers of India have started returning to their home states from the red light areas. Major red light areas include Mumbai’s Kamathipura, Sonagachi in Bengal and other metropolitan cities such as Delhi, Chennai and Bangalore.[7] A recent Report pointed out that over 60% of the sex workers have already migrated from Delhi to their respective native places.[8] It might come as a relief for some, as it will not flood the red light areas with the deadly virus; but it must be noted with caution, that these earlier self-employed women are now going to live a life of extreme torture and angst. Respected and accepted in their workplace, they now have to live on the ‘cursed’ sympathy of others which will invariably be constituted of exploitation and desolation. This ill-decided but necessary migration has raised a dilemmatic question on the fundamental right to freedom of practicing a business, trade or occupation [9] of one’s own choice. The aforesaid exploitation if occurs, will not only be a glare contradiction to Articles 15(3) and 23; but also an explicit inconsistency in conflict with the highly acclaimed principle of constitutional morality. With fewer protection from life threatening diseases like HIV/AIDS, the lives of these women is now visibly endangered. Additionally, it must be noted that sex workers were registered in these red light areas, thus making them eligible for social protection and economic help from both- the government and the NGOs. However, this favourable scenario is now going to take a downswing turn.
The 10 million sex workers of India [10] presently living in congested accommodations, marred by a micro-financial economic agony are all but, surviving on the lesser available bare necessities available. To remedy the present situation, specific governments have been trying their best to solve the issue so arisen. The Odisha government alongwith the State Human Rights Commission (SHRC), has provided ration-relief to the lockdown –hit sex workers. [11] But appallingly, only 1% of the transpersons and sex-workers have been able to actually receive the government aid. [12] The above explicated facts and circumstances make it crystal clear that, prostitutes are not living the life that everyone else is. This is understandably an audible violation of the five expressedly mentioned fundamental rights to equality (Article 14-18) of our Constitution. The end result of this vicious cycle is going to be an irreversible marginalisation of the already victimised and enslaved community of the sex workers.
Legal Perspective:
Prostitution in India is partially legal with certain attached activities like pimping, luring a customer in public places (schools, residential areas, et al) and running a brothel, as exceptions. An individual practicing prostitution is allowed, with certain restrictions contained as aforementioned in Immoral Traffic (Prevention) Act, 1956. [13] Sections 372-372, Section 268 and Section 292 of the Indian Penal Code criminalise the activities of obscenity and prostitution as public nuisance, if carried out in open. [14] Securing a customer for prostitution or securing a prostitute for a customer is considered as a synonym to human trafficking, which is explicitly prohibited by Articles 23(1) and Articles 23(2) of the Constitution.[15] The Apex Court has time and again upheld the constitutionality of the Act. [16]
In Budhadev Karmaskar v State of West Bengal (2011) [17] the Calcutta High Court observed that, “sex workers are human beings and no one has a right to assault or murder them as they also have the right to live.”
In Gaurav Jain v Union of India [18], the Supreme Court categorically upheld the human and constitutional rights of the sex workers and passed specific guidelines for the government to make provisions for unbiased education of the children of the prostitutes, alongwith providing a safe and secure environment for their holistic development.
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Act 2018 [19]includes provisions for persons forcibly engaged in trafficking but gives a miss to the miseries and social security benefits of the persons who consensually engage in prostitution, thus overlapping two totally differentiable acts. It also fails to address the fact that even males and transgenders are a part of consensual prostitution practices, thus risking them to vulnerability.
Additionally, the sex workers have now started going the digital way. [20] With no physical visits of clients, prostitutes have found a new business trick in WhatsApp, voice calls, etc. But this transformation in their business outlook has another lurking danger in Information Technology Act, 2000. The IT Act, 2000 criminalises any publication of obscene electronic record and imposes a heavy penalty on the wrongdoer. [21] With no protection from such data surveillance and the additive perils of the incomplete Data Protection Bill [22] (2019) and the state-favouring provisions of The Telegraph Act, 1885 [23]the lives of sex workers has come a full circle.
Way Forward:
All these legal vacuums and ambiguities of the Indian legal system are in clear contradiction to the Sustainable Development Goals and Universal Declaration of Human Rights (1948), both of which ensure equality and respect to all. Sex workers all over the world [24] are facing inexplicable dangers, which all of us fail to notice. The need of the hour is to address the issue holistically and remedy the legislative emptiness, with regard to the social and economic security of the prostitutes. The collective acceptance of their profession by the society is the first step forward in which community participation is must. A look at all the problems faced by them and having a constructive debate and discussion on the same will fill in the legal and legislative vacuums. For the development of the nation, treading the difficult path with all is the only way. That way, Sabka Sath Sabka Vikas would truly become a reality.
References:-
[1]Prostitution, New World Encyclopedia, https://www.newworldencyclopedia.org/entry/prostitution.
[2]id.
[3]Aslam Mahmud, When Prostitution was a symbol of high culture in elite circles of 19th century, Quartz India (Jun. 7, 2017) https://qz.com/india/1000432/when-prostitution-was-a-symbol-of-high-culture-in-the-elite-circles-of-19th-century-india/.
[4]G. Kuppuram, Chanakya on Prostitution, Proceedings on the Indian History Congress, 40, 215-219 (1979) https://www.jstor.org/stable/44141963?seq=1.
[5]Dr. Tulsing Solwani, Prostitution in Indian Society: Issues, Trends and Rehabilitation, https://www.ugc.ac.in/mrp/paper/MRP-MAJOR-SOCI-2013-25158-PAPER.pdf.
[6]Krithika Rajam, How devadasis went from having high social status to being sex slaves and child prostitutes, Human Rights (Apr. 24, 2017) https://yourstory.com/2017/04/devadasis-india.
[7]My life in the red light area of Sonagachi, United Nations office on Drugs and Crime, https://www.unodc.org/southasia/en/frontpage/2010/March/red-lights-of-sonagachi.html.
[8]Lockdown, Over 60% of sex workers in Delhi return to their home states (May 17, 2020, 13:43 IST) https://www.thehindu.com/news/cities/Delhi/lockdown-over-60-of-sex-workers-in-delhi-return-to-their-home-states/article31606490.ece.
[9]Ind. Const., art. 19(1)(g).
[10]Shoma A. Chatterji, From Exploitation to hunger- se workers struggle to survive the lockdown, The Citizen is Hopeful (Jun. 14, 2020) https://www.thecitizen.in/index.php/en/NewsDetail/index/7/18882/From-Exploitation-to-Hunger---Sex-Workers-Struggle-to-Survive-the-Lockdown.
[11]Shubhashish Mohanty, Ration-relief for lockdown-hit sex workers in Odisha, The Telegraph Online ( Jun. 2, 2020, 9:23 PM) https://www.telegraphindia.com/india/ration-relief-for-coronavirus-lockdown-hit-sex-workers-in-odisha/cid/1777965.
[12]Shubhda Chaudhary, Just 1% of transpersons and sex workers receive government relief so far, The Citizen is Hopeful (Jun. 12, 2020) https://www.thecitizen.in/index.php/en/NewsDetail/index/7/18870/Just-1-of-Transpersons-and-Sex-Workers-Receive-Government-Relief-So-Far.
[13]Immoral Traffic (Prevention) Act, 1956.
[14]Indian Penal Code, 1860.
[15]Ind. Const., art. 23(1), 23 (2).
[16]Raj Bahadur v Legal Remembrancer (AIR 1953 Cal. 552) https://indiankanoon.org/doc/1473810/.
[17]Budhadev Kamaskar v State of West Bengal (2011) https://indiankanoon.org/doc/1302025/.
[18]Gaurav Jain v Union of India (1997 (8) SCC 144) https://indiankanoon.org/doc/40881001/.
[19]The Trafficking of Persons (Prevention, Protection and Rehabilitation) Act 2018.
[20]Omkar Khandekar, How Sex workers are using technology to service clients during lockdown, Live Mint (May 22, 2020 , 7:24 PM) https://www.livemint.com/mint-lounge/features/how-sex-workers-are-using-technology-to-service-clients-during-the-lockdown-11590152476385.html.
[21]Sec. 67-69, Information Technology Act, 2000.
[22]Apar Gupta, The Data Protection Bill only weakens user rights, The Hindu(Dec. 27, 2019, 12:08 IST) https://www.thehindu.com/opinion/lead/the-data-protection-bill-only-weakens-user-rights/article30405339.ece.
[23]Sec. 5 The Telegraph Act ,1885.
[24]Kissing off menu as Coronavirus lockdown ends for dutch sex workers, NDTV ( Jul. 1,2020, 11:30PM) https://www.ndtv.com/world-news/kissing-off-menu-as-coronavirus-lockdown-ends-for-dutch-sex-workers-2255521
