According to Grover, the fulcrum of sex work is not illegal, but the activities around it are penalised. He feels that it will take time to change the mindset on sexuality.
On May 19, the Supreme Court bench of Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna, in Budhadev Karmaskar versus State of West Bengal observed that sex workers across India suffer from a lack of legal identity. The bench passed orders based on the final report of a Supreme Court-appointed panel. Notably, the most significant observation was that sex workers have the right to live with dignity under Article 21 of the Constitution.
The Leaflet has reported the directions made by the court in the exercise of its power of doing complete justice under Article 142 of the Constitution. In order to trace the genesis of this case, The Leaflet interviewed one of its founders, senior advocate Anand Grover, who represented the sex workers’ organisations, Durbar Mahila Samanwaya Committee (DMSC) and the USHA Multipurpose Cooperative Society, in this case.
Excerpts from the interview:
Q: Can you tell us about the origin of this case?
A: It was a case of a murder of a sex worker that was committed in 1999 in Kolkata. It came by way of a criminal appeal before a two-judge bench of the Supreme Court consisting Justices Markandey Katju and Gyan Sudha Mishra. The bench upheld the decision of the trial court to punish the accused for the offence of murder. But the bench also wanted to address the broader questions of law, especially the dignity of sex workers, and thus, it decided to take up this case as a separate suo motu Public Interest Litigation (‘PIL’).
An individual engaging in commercial sex for consideration (money) is per se not illegal under the Immoral Traffic (Prevention) Act, 1956. There are historic reasons for not criminalising commercial individual sex workers. What is illegal are the activities around it, such as keeping a brothel or allowing a premise to be used as a brothel, among other things.
In furtherance of this, a panel was appointed by the court headed by Senior Advocate Pradip Ghosh. It also consisted of Senior Advocate Jayant Bhushan. The DMSC and the USHA Cooperative were impleaded as parties to the PIL on July 19, 2011. DMSC and USHA Cooperative were represented by lawyers; including Dr. Jana Smarajit, founder of the DMSC, who was also one of the panel members.
The panel members heard the concerned stakeholders all over the country on many issues relating to the rights of sex workers. The panel considered all these issues and made interim recommendations to the court. The final recommendations were submitted by the panel to the Supreme Court on September 14, 2016.
Q: Were there any orders made by the court based on the interim recommendations?
A: Yes, there were orders passed to recognise sex workers with human dignity. The third interim report recommended relaxing the rules of verification and ensuring ration, Aadhaar and voter identity cards to all the sex workers. There were also recommendations on the right to access education of the children of sex workers without any hindrance to the social status of the mother. The Supreme Court accepted the recommendations on September 15, 2011. However, these orders were not complied with by the Union and state governments.
During the COVID-19 pandemic, the sex workers could not engage in their trade and could not earn any money. They did not have ration cards or any other identity cards. Consequently, they could not access dry food rations like other citizens. They were literally starving. On September 29, 2020, on behalf of the DMSC, we moved an application praying that they should be given monthly dry rations and a cash transfer of Rs. 5,000 should be made by the state governments, even if they do not have ration cards. An additional amount of Rs. 2,500 should be made for school-going children.
This was the turning point of this case as the court then passed orders to ensure dry rations are given to the sex workers irrespective of them not having ration cards but based on the sex workers’ names on the National AIDS Control Organisation (‘NACO’)’s list. The District Legal Services Authorities (‘DLSA’) were directed to assist in the distribution of dry rations to sex workers without insisting on proof of identity. In fact, the court through its order dated October 28, 2020, directed the state governments not to associate police authorities in the distribution of dry rations to the sex workers.
Also, it is pertinent that during the discussion of the third interim report, the court observed in clear terms that sex workers have the same fundamental rights as any other citizen of India. This was held because all the debate and discussion on the issues of sex workers made it clear that they were not recognised as citizens because of their profession and the stigma attached to it. Notably, an individual engaging in commercial sex for consideration (money) is per se not illegal under the Immoral Traffic (Prevention) Act, 1956 (‘ITPA’). There are historic reasons for not criminalising commercial individual sex workers. What is illegal are the activities around it, such as keeping a brothel or allowing a premise to be used as a brothel, and so on (as per Section 3 of the ITPA).
Q: You talked about NACO’s list on the basis of which dry ration was distributed. How does that work? Did you suggest any modus operandi?
A: We actually identified civil society actors who are working with State AIDS Prevention and Control Societies (‘SACS’) or NACO. NACO has a system in which they give out goods, services and facilities that are required for HIV prevention and treatment. The system has the necessary information to reach out to sex workers to provide dry rations. Under the protocol, NACO works with Community-based Organisations (‘CBOs’), which are groups on the ground with a thousand or more members. Now, those who are a part of this group are identified with confidentiality of their identity maintained. They were the first ones to be given dry food rations, election cards and Aadhaar cards.
Now, we are concerned about those who are not a part of this group. To identify them and ensure that they are given ration and identity cards is a challenge for all of us. Fundamentally, from being non-citizens, with a series of orders, sex workers have become citizens with entitlements.
Q: Also, why do you think the earlier interim measure of giving Aadhaar cards was not complied with?
A: Sex workers do not have any proof of residence. There is no agreement that they enter into in respect of their residence. All engagements are done on a cash basis without any documentation. Unless, they are sex workers from organisations like DMSC in Sonagachi, where the groups are organised. But in other places, there are no agreements and thus, it’s difficult for sex workers to furnish proof of their address, which in turn also makes it difficult to even open a bank account.
The Supreme Court-appointed panel carved out three important issues that were the prevention of human trafficking, rehabilitation of sex workers who wish to leave sex work, and conditions conducive for sex workers to live with dignity who wish to continue their work.
Q: Could you summarise the final recommendations of the panel?
A: The panel’s view was that sex workers suffer from a lack of legal status in India. The panel carved out three important issues that were the prevention of human trafficking, rehabilitation of sex workers who wish to leave sex work, and conditions conducive for sex workers to live with dignity who wish to continue their work.
Human trafficking means that a person is forcibly brought into the sex trade. In human trafficking, experience suggests that a large number of them come as minors, but continue as sex workers and by the time they are actually notified, they have already attained the age of majority and they do not want to go back because society will not take them back.
Q: But how do you prevent persons from being coerced into sex work?
A: During the hearing of this case, we had recommended on behalf of the DMSC, that it should be done by the sex workers’ organisations themselves. They are the first to get the information on who is coming into the sex trade. In Sonagachi, a representative of the DMSC contacts that person. That person could either be a minor or a major. No minor is allowed to join the sex trade in Sonagachi.
Older people come into it because they may be deserted by their husbands and their families. These people have no option in terms of jobs, and the DMSC tries to find out if they were being forced by other people. If they are forced, the DMSC works to make sure these persons are returned to where they came from.
Q: On rehabilitation, what were the issues and the recommendations?
A: The court has passed an order on treating them equally under the criminal law and with human dignity. But there is an issue of police having the power to raid and remove people from a premise that is used as a brothel. When raids are carried out on the basis that a person is forced into sex work or there is a brothel, the concerned authority has the power to remove them from that premise.
What we argued and the panel recommended was that if these people are there voluntarily and have consented to it, they should not be removed. The Union Government did not agree with this. The Union also had an issue about whether sex workers should be consulted in the decision-making process on issues which affect them, as also how the police should treat complaints of sexual assault by sex workers. The court has not passed orders on this. These issues will require further debate after which the court will pass orders on them.
While there was no opposition by the union on the issues of health protocols to be followed when a sex worker is sexually assaulted, health and safety of sex workers generally at the workplace, police treating sex workers with dignity in raid, sensitising the police on these issues, survey of protection homes to ensure those sex workers are not kept their against their will and released, on involving DLSA personnel in giving legal advice and legal aid to sex workers, and sex workers keeping their children with them. So orders for compliance have been passed by the court.
Also, on the issuance of Aadhaar cards, the Unique Identification Authority of India (‘UIDAI’) agreed to the suggestions made by us and the procedure has been mandated by the court.
Q: What are those suggestions?
A: We now have a separate scheme of the UIDAI to grant them Aadhaar cards. The UIDAI proposed that those sex workers who are on the list of NACO and who do not have proof of residence will be issued an Aadhaar card provided a proforma certificate is submitted to the Gazetted Officer at NACO or the state health department certifying the particulars of the applicant. If the Gazetted Officer is unable to furnish the proof of residence, then the Project Director of the SACS, or their nominee should be designated to do that.
The issue is that people assume the consent of the sex worker to have sex at all times. What we told the court is that consent has to be taken every time and if the consent of the sex worker is not available, that would amount to rape. However, the ground reality, as we know, suggests that police do not take any note of these complaints at the moment.
This procedure not only extends to NACO-recognised sex workers; it also applies to those identified by other CBOs as well. This way, going forward, will help us identify those sex workers who were left off the NACO list. Most importantly, the whole procedure maintains confidentiality, and thus, it would not reveal the profession of a person for the purpose of availing Aadhaar.
Also read: Why must we recognise sex work as ‘work’?
Q: There is concern about the serious reservation made by the Union on sex workers approaching the police to lodge a complaint. Their complaint is not treated seriously.
A: They have made a reservation on this. We argued that the complaint from a sex worker should not be treated differently. But the issue is that people assume the consent of the sex worker to have sex at all times. What we told the court is that consent has to be taken every time and if the consent of the sex worker is not available, that would amount to rape. However, the ground reality, as we know, suggests that police do not take any note of these complaints at the moment. As the union government did not agree to this, it will be taken up for argument later.
Notably, in most countries, where activities around sex work are criminalised, sex workers find it very difficult to lodge any complaints against clients. The only country where commercial sex is legal is New Zealand, where people have actually been convicted for raping sex workers. This indicates that there is an overall need to change the law.
Q. There is concern relating to children found in brothel. We already have a Supreme Court judgment which says that a child of a sex worker should not be separated.
A: We proposed that if a child is found in a brothel with a sex worker, it should not be assumed that they are trafficked. The sixth interim report dated March 23, 2020, had recommended that the child should not be separated from their mother just because she is a sex worker. There should not be any presumption that the child is trafficked unless there is evidence to suggest that the child has been engaged in sex work. The facts should be ascertained on the ground.
Q. Are these recommendations inclusive of male and transgender sex workers?
A: Of course. When we argued before the court, we have spoken on behalf of all genders and the orders of the court itself reflect that.
Q. Did the panel make any specific recommendation on the right to education of the children of sex workers?
A: There are extensive recommendations on how the right to compulsory primary education for the children of the sex workers can be realised. The court has made sure children are not sufferers because of the profession [of their parents].
The Right of Children to Free and Compulsory Education Act, 2009 and Article 21A ensure that children are able to attend nearby schools. But often, the children of sex workers do not attend nearby schools and if the sex worker is earning a fair amount of money, they want their children to be educated in good schools. We are also aware that there will be problems for children of sex workers attending schools because of stigma and discrimination. That is when ground intervention will be necessary. In fact, sex workers will themselves take up this issue, if needed, because they are very organised groups and are a party to the PIL. They do not want a third-party intervention here.
Q: You referred to the sex workers as organised groups. Can you explain?
A: Sex workers, especially in Sonagachi, are organized because, during HIV, they were organised into self-help groups where peer educators were trained to promote negotiation of condom use. HIV was rapidly spreading in India and there were calls to stop sex work. A human-rights based strategy was formulated to engage with sex workers to empower them by training, including on negotiating condom use, thereby preventing the spread of HIV, which happens through unprotected sexual intercourse with an HIV-positive person. So, this made the sex workers organised into groups all around the country.
It is because of the moral prescription around sex work that we have hypocritical laws in place. The sooner they are done away with the better it is. That was the same with Section 377 of the Indian Penal Code. Criminalising same-sex relations was not a part of our culture. It was done by the British.
That is why issues like education are themselves taken up by these groups. Gradually, they have proved to be the most strategic partner in stopping the spread of HIV transmission. This will be the first epidemic which will be eradicated in the next 20-30 years through a human-rights based intervention.
Q: In the Vishakha judgment (1997), the Supreme Court laid down guidelines on the protection of women from sexual harassment at the workplace. But the Parliament took more than 13 years to enact a law. Do you think we will be able to have a law based on these directions in this case sooner rather than later?
A: During the course of the hearing, I told the court that it was for the first time that sex workers, who were considered non-citizens, were given an identity as citizens. Citizenship means entitlement, which ensures ration and identity cards to the poor. It should have been given by the legislature. But this was done by the court!
This should not be compared with The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH’). In my personal experience, the POSH law is not working properly. But whether we need a law on this or not depends on whether we want to allow sex work to be continued on a voluntary basis. The fulcrum of sex work is not being illegal but the activities around it are penalised. It needs to be sorted out and it will take a lot of time since it concerns changing the public’s mind-set on sexuality.
Q: Do you think we need amendments in the ITPA? Why do we need the Act in the first place when engaging in commercial sex by an individual is per se not illegal?
A: Well, it is because of the moral prescription around sex work that we have hypocritical laws in place. The sooner they are done away with, the better it is. That was the same with Section 377 of the Indian Penal Code. Criminalising same-sex relations was not a part of our culture. It was done by the British.
But we need a proper debate on this because there is always a possibility of the issue being sensationalised, as happened in the recent controversy. There was no attempt by the court to say that the profession of sex work is legalised. They only observed that sex workers should be treated with dignity. However, the press reported otherwise and created a lot of confusion.
Gursimran Kaur Bakshi is a staff writer at The Leaflet