Decriminalisation of Sex Work:

1. Decriminalisation of Sex Work: Renewed Optimism in India Amritananda Chakravorty

2. 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

3. 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

4. Constitutional Challenges to ITPA • Validity 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), ShamaBai & Anr. v. State of UP (AIR 1959 ALL 57), SahyogMahilaMandal v. State of Gujarat (2004) 2 GLR 1764

5. 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)

6. 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)

7. 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

8. Renewed Optimism… • Delhi High Court judgement in Naz Foundation’s case decriminalising adult consensual same sex behaviourin 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

9. 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”

10. ITPA Amendments are not Dead • Apart 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

11. 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