Making a case for decriminalising sex work for the right to live with dignity

On May 19, 2022 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.

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THE story of the struggle of sex workers in Bengaluru against police atrocities paints a picture of the problematic way in which the Immoral Traffic (Prevention) Act, 1956 (ITPA) functions. Their legal recourse in the form of complaints to the Karnataka State Human Rights Commission makes an argument against criminalisation of sex work and their paternalistic institutionalisation as a result of raids. It also highlights the significance of the recent direction by the Supreme Court in Budhadev Karmaskar versus State of West Bengal.

Also read: Securing sex workers' future: Significance of Supreme Court's direction

Police brutality against sex workers has been a perennial problem everywhere in India. However, in recent years there has been a serious escalation in the city of Bengaluru. Street-based sex workers have been continuously targeted, detained and beaten up by the police. For years now, it has been a recurring pattern for the law enforcement agencies to harass and intimidate sex workers in public under threat of registering cases under the ITPA.

Committee hearing on police brutality against sex workers in Bengaluru

On March 2019, a committee hearing was conducted by civil society organisations headed by Justice H.N. Nagmohan Das, a retired Karnataka High Court judge. The committee recorded the testimonies of multiple women and transgender sex workers pertaining to police violence against them. These testimonies were supported by medico-legal certificates and complaints to various authorities.

The report of the hearing held that "the police station of Upparpete and the [deputy commissioner of police] (DCP) West proceeded to intensify the aggressive action against women and transgender sex workers. All complaints to higher authorities in the government and the police department drew no response, and the DCP and his staff in Upparpet station continued to use violent methods and threats with a single agenda— clearing the area of every sex worker.

"The only change observed is that the police now do not beat the women or [transgender people] in the streets. While they continue to do so within the precincts of the police station, they leave the street abuse to the Obavva Pade (OP), a group within the police that claims they have been given the authority to apprehend any sex worker wherever they might be, publicly abuse and humiliate them and drag them to the police station."

Much of the organising and documentation was done by Sadhana Mahila Sangha, a Bengaluru-based organisation of women working for the protection of the rights of street-based sex workers for over two decades. Though the study began with the situation of women in Bengaluru city, the committee realised that the issues raised by the women in sex work had a larger regional as well as national applicability.          

Key aspects of the Immoral Traffic (Prevention) Act, 1956

The Constitution of India, under Article 23, prohibits trafficking in human beings and other similar forms of forced labour and authorises the Parliament to legislate to punish the same. There are certain sections pertaining to trafficking for purposes of sexual exploitation in the Indian Penal Code (IPC). The primary legislation that deals with prostitution and trafficking is the ITPA.

Initially titled Suppression of Immoral Traffic in Women and Girls Act, 1956, this law was enacted to comply with India's obligation to implement the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949. The convention's primary aim was to criminalise all those that benefited from sex work such as traffickers, pimps and so on. After its amendment in 1986, the law goes by Immoral Traffic (Prevention) Act, 1956. The amendment substituted the words "female" and "girls" with "person", which made the Act applicable to transgender, female and male sex workers. This created two neat legal categories of accused and victim; and imposed itself on a complicated market and phenomenon.

Sex work is commonly understood as receiving consideration in exchange for consensual sexual services or erotic performances, either regularly or occasionally. Under the ITPA, sex work is not illegal per se; however, many activities surrounding sex work are criminalised. Since 1986, the Act defines "prostitution" as the sexual exploitation or abuse of persons for commercial purpose. Therefore, the Act has left out consensual sexual services.

For instance, Sections 3, 4, 5 and 6 of the ITPA, provide punishments for keeping a brothel, living on the earnings of prostitution of another person, inducing or procuring for prostitution, or detaining a person for prostitution in a brothel or such premises. They provide severe punishment where the offence is committed against a child or a minor. These sections can be used against traffickers, pimps and other agents and facilitators of commercial sexual exploitation of women and children. Section 4 of the Act penalises any person living on the earnings of prostitution of another person. It notably criminalises the families of sex workers.

However, this distinction between consensual sex work and prostitution or between sex work and activities surrounding it becomes purely academic when the Act is enforced. In actuality, the enforcement of ITPA invariably targets the visible figure of the sex worker (who is also the weakest link in the chain) and generally spares the hidden and powerful system that supports the institution of trafficking.

As a result of the enforcement of the Act; female, transgender and male sex workers face State violence and public humiliation. This produces an underclass of permanently targeted people who at any time are liable to be assaulted in public, merely because they happen to be there, taken away to the police station, wrongfully confined and restrained, subjected to humiliating treatment, their earnings taken away. Sometimes, false cases are lodged against them which serve the double purpose of 'solving' an existing case and keeping the sex workers off the street.

Often, the weapon of choice are Sections 7 and 8 of the Act. The Sections penalise prostitution when carried out in public places which include within 200 meters of densely populated areas, places of worship, educational institutions, hospitals, nursing homes and those areas which are notified by the commissioner of police or executive magistrate. Section 8 penalises a person for seducing or soliciting another person for the purpose of prostitution. Section 10 allows the court to detain female sex workers in a corrective institution instead of prison if convicted under Sections 7 and 8 based on certain factors.

All offences under ITPA are cognisable and the power of search without warrant is given under these sections. Therefore, the statute already arms the police authorities with significant powers, which enable them to conduct "raids" or "rescue" operations and remove sex workers from brothels or other premises without consent of those "rescued".

Those rescued are categorised as victims in the first information report (FIR) and then subsequently in the chargesheet. Victims are to be immediately produced before a magistrate under Section 17, who can then either release the victim or can detain them for up to three years in a protective home. Notably, this includes sex workers that have attained the age of majority. Magistrates also have the power to close brothels and evict women from any premises where sex work is believed to be happening with merely a seven-day notice period.

In order to secure the release of detained sex workers, the statute requires the magistrate to enquire into the age, character and antecedents of the victim and the suitability of his or her parents, guardian or husband for taking charge of him or her among other aspects. Therefore, the language of the statute itself is couched with paternalism which allows for forced detention and rehabilitation.

In many cases, the accused persons end up securing bail within a reasonable time frame from the point of registration of the FIR, due to a well-developed bail jurisprudence, while those categorised as victims continue to be held captive by protection homes or remand homes. This aspect of paternalistic detention is also a big challenge faced by sex workers around the country.

Orders of the Karnataka State Human Rights Commission (KSHRC)

Based on the report of (PUCL-K), women and transgender sex workers from central Bengaluru approached the state Human Rights Commission seeking long-term as well as immediate recommendations to ameliorate the inhuman conditions faced by women and transgender sex workers as a result of police brutality.

Affidavits supported by medico-legal certificates (MLCs) of at least two sex workers were also produced narrating the specific instances of violence. One key allegation against the police authorities was that without registration of a case, sex workers are detained in the police station, beaten up and humiliated. An inquiry was ordered to be conducted by the director general and the inspector general of police of Karnataka.

Counter allegations against sex workers were made about soliciting, extracting money and exploiting the general public. In that context, an Order was passed by the commission on February 9, 2022 seeking details of the cases registered under the Act in Karnataka and specifically in Upparpete and Outpost police stations, as also to supply the particular by number of convictions under the said Act in the last five years.

Also read: Treat sex workers with dignity and educate them about their rights, Supreme Court directs all states and union territories

In its Order dated September 29, 2022, the commission, relying on statistics and data provided by the police authorities noted that "most cases are being booked against the victim women for soliciting under Section 8 of the ITP Act". The Order further provided that officers should ensure that this is corrected and the available Sections are used against traffickers and agents of prostitution and the role of victim women is viewed sympathetically. Additionally, the data submitted suggested the registration of a negligible number of cases under the said Act and almost next to nil convictions.

In the course of the proceedings, the then police sub-inspector (PSI) at Upparpete Police Station and officer in-charge of Obbava Pade explained her version when confronted with the allegations. In her statement it was very clearly admitted that the DCP had in fact constituted a force called Obavva Pade and it was led by her to check and educate the sex workers on the street. However, this force was later dismantled. Although she had denied the specific allegation of assault, she had some crucial admissions; such as bringing sex workers to the police station to warn them to stop their work, if they did not comply with such "warnings," the police went ahead and filed petty false cases against the sex workers.

The commission then took the view that the alleged incidents of police atrocities on sex-workers are happening off the record and the requisite legal procedure for registering the criminal cases and properly prosecuting actual offenders is neglected.

Moreover, the commission held that: "At least two instances of violence against women have been proved by oral and documentary evidence, medical papers of government hospital and photographs of the injuries... Instead their right to dignity and right to equality and equal protection of law have been violated by police officers without they being charged with any specific offence upon any complaint worth the name."

Based on its views, the commission recommended that certain circulars issued by the highest police authority in the state be implemented. The first circular was about not treating sex workers as accused under the Act. The second one was about ensuring that CCTV cameras are operational across police stations in the state as per Supreme Court Orders.

The commission recommended monetary compensation to the two sex workers for injuries suffered as a result of police assault and recommended disciplinary action for punishment and recovery of the compensation required to be paid, against such officers as may be identified as responsible.

The Orders and directions of the KSHRC are radical because they take cognisance of the illegal methods deployed by police authorities against sex workers, ranging from torture, to registering false criminal cases and the creation of a moral policing unit called the Obavva Pade.

It recognises that the ITPA, in its operation in Karnataka, targets sex workers and Orders against such a practice. The direction ensuring that CCTV cameras are operational across police stations is also extremely important to deter custodial torture as securing evidence against the police in custodial torture and death cases is one of the biggest challenges. The KSHRC Order, while holding some of the police officials accountable, will hopefully reduce the culture of police brutality against sex workers in Karnataka.

Sex worker organisations in Bengaluru have breathed a sigh of relief regarding the Order as it would assist them in the larger fight against police violence. In passing this Order, the KSHRC relied on the recent directions by the Supreme Court, which in itself is a landmark moment.

Significance of Supreme Court directions in the Budhadev Karmaskar case

Incidentally it was in a criminal case that the Supreme Court took cognisance of the plight of sex workers and have been issuing continuous directions under Article 142 since then. In this case, the accused, Budhadev Karmaskar was convicted of murdering a sex worker in Kolkata in 1999. The court sou motu converted the matter into a public interest litigation (PIL), to address problems of sex workers. The court held that, just as any other human being, sex workers are also entitled to a life of dignity under Article 21  of the Constitution; and went on to pass directions to Central and state governments to prepare schemes for vocational training for sex workers.

Although the court did come to an understanding that people engage in sex work due to abject poverty and an absence of choice, but at the same time the court also held that any rehabilitation of the sex workers will not be coercive in any manner and it shall be voluntary on the part of the sex workers.

Also read: How a criminal appeal by an appellant, while being dismissed by the Supreme Court, brought succour to sex workers during Covid times

This direction, coupled with several judgments of the Supreme Court and high courts, holding that an adult woman cannot be detained against her will in her home or any other institution, should have been enough to stop invoking Section 17(4) to institutionalise victims against their will. However, this practice continued.

In this context, the Supreme Court's Order has been crucial to ameliorate some of the issues of sex workers. The directions were based on the recommendations of a panel constituted by the court. The court noted that despite the panel submitting its recommendations to the government in 2016, legislative changes had not been brought about. Therefore, since there is a vacuum in the law until the legislature steps in, the court passed a set of directions.

Some of the key directions are: when a sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action, when a sex worker makes a complaint of criminal, sexual or any other type of offence, the police must take it seriously and act in accordance with law. The police and other law enforcement agencies should be sensitised to the rights of sex workers so that they treat sex workers with dignity.

Moreover, directions were issued to the Press Council of India to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations.

The directions also said that measures sex workers take for their health and safety, such as use of condoms cannot be construed as offences or used as evidence in the investigation of an offence. The court also issued directions to the Central and state governments to involve sex workers in decision making processes, policy and laws pertaining to sex work and to conduct workshops for sex workers on their rights. Another important direction is that no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade.

One more key direction is that whenever there is a raid on any brothel, since voluntary sex work is not illegal, the sex workers concerned should not be arrested or penalised or harassed or victimised and that state governments must conduct a survey of all ITPA 'protective homes' so that adult women, detained against their will, can be released in a time-bound manner.

These directions are historic for a number of reasons. Firstly, there is clear protection to voluntary sex work from criminal prosecution and police intervention. The separate mention of police intervention is important because police intervention can begin even before a case is registered.

Secondly, there is a clear recognition that the culture of policing needs to change in terms treating sex workers with dignity.

Thirdly, the directions put a full stop to the draconian practice enabled by the ITPA of detaining sex worker against their will to rehabilitate them. Not only that, it orders states to survey existing homes so that detainees can be released. This is a recognition of the agency of sex workers, which had till then been denied by the State.

The Supreme Court Order in Budhadev and the Orders passed by KSHRC, when read together judicially, recognise the overwhelming trend of targeting of sex workers by the ITPA and the ubiquitous phenomenon of police harassment against sex workers. While, the KSHRC Orders lay emphasis on police accountability, particularly with regard to torture of sex workers and staying within the boundaries of criminal procedure, the Budhadev directions have a direct impact on the functioning of the ITPA across the country.

Towards de-criminalisation of sex work

The recent Orders of the Supreme Court in the Budhadev case is certainly a giant leap forward in ameliorating some of the issues faced by sex workers, however, this still only serves as damage limitation. The heart of the problem is the conflation of voluntary sex work with trafficking and exploitation of sex workers.

The UNAIDS Guidance Note on HIV and Sex Workers states, "There is a growing body of evidence that 'raiding' sex work venues and forcibly 'rescuing' or 'rehabilitating' sex workers results in increased displacement of sex workers, mobility of sex work venues and migration among sex workers; it also has a direct impact on HIV risk. Forced rescue and rehabilitation practices lower sex workers' control over where and under what conditions they sell sexual services and to whom, exposing them to greater violence and exploitation.

"In turn, this leads to social disintegration and a loss of solidarity and cohesion (social capital) among sex workers, including reducing their ability to access healthcare, legal and social services. Low social capital is known to increase vulnerability to sexually transmitted infections among sex workers and therefore has a detrimental impact on HIV prevention efforts. The conflation of sex work and trafficking directly limits the ability of migrant sex workers to protect themselves from HIV, since they are often assumed to be trafficked."

If one looks at the latest National Crime Records Bureau  (NCRB) report, 2021, it indicates that there were 1,678 cases filed under the ITPA throughout the country. The breakup of the ITPA provisions suggests that 328 cases were filed under Section 5 (procuring, inducing, taking person for sake of prostitution). While 204 cases were filed under Section 6 (detaining person in premises where prostitution is carried on), 137 cases were filed under Section 7 (prostitution in vicinity of public place). Under Section 8 (soliciting for purpose of prostitution), 44 cases were registered. About 358 cases were registered under other provisions of the Act.

A surface reading of the 2021 figures may impel one to conclude a large number of cases under Sections 7 and 8 combined (meant to target sex workers who solicit or who carry out prostitution in vicinity of public place) are being filed (181) (358 cases were filed under other provisions and it is not clear which group is the target of these cases). However, in reality, the line between a pimp, one who is managing the brothel and sex workers who only engage in sex work is often blurred. The result is that many sex workers are booked under other provisions of the Act. The distinction in practice turns out to be facile.

Also read: Why must we also recognize sex work as 'work'?

Whenever particular Sections of the ITP, 1956, have been constitutionally challenged, they have been upheld on grounds of public morality or interest, while viewing sex work as inherently immoral or evil. In State of Uttar Pradesh versus Kaushaliya, in 1963, a Constitution Bench of the Supreme Court examined whether Section 20 of the Act infringed Article 19(1) (d) and (e), freedom of movement and residence, throughout India. Section 20 of the Act enable a magistrate to direct a sex worker to remove herself from the place where she is residing to a place outside the jurisdiction of the magistrate, after providing opportunity of hearing. The court upheld Section 20, on the grounds of it being a reasonable restriction.

The Supreme Court said, "If in a particular locality the vice of prostitution is endemic degrading those who live by prostitution and demoralising others who come into contact with them, the legislature may have to impose severe restrictions on the right of the prostitute to move about and to live in a house of her choice.

"If the evil is rampant, it may also be necessary to provide for deportation of the worst of them from the area of their operation. The magnitude of the evil and the urgency of the reform may require such drastic remedies."

A division Bench of the Andhra Pradesh High Court in P.N. Swamy, Labour Liberation Front, Mahaboobnagar versus Station House Officer, Hyderabad (1998), upheld the aforementioned Section 17(4), which allows the magistrate to detain the rescued women to protective or welfare homes to keep them for up to three years in absence of trial.

Again, the challenge was on grounds of violating Articles 19(1) (d) and (e) and 21 of the Constitution of India. The court held that detaining victims is to reform and rehabilitate them but not as punishment. The court saw the provision as a reasonable restriction to remove the "social evil for the good of the society."

One can see a strong influence of the idea of sex work itself as a social evil based on social morality. Today, this justification cannot be countenanced, in light of declarations made by the Supreme Court in recent cases of Navtej Singh Johar versus Union of India (2018) and the Sabarimala temple entry case, in which it was essentially held that courts must ensure that individuals are not discriminated against on the basis of a social majoritarian morality which is transient and changes with time.

That constitutional morality will always trump social morality, which is the moral philosophy of the Constitution that can be ascertained from its text and Constituent Assembly debates. Moreover, if one considers that the Supreme Court in S. Puttaswamy versus Union of India (2017) has held one's intimate personal choices regarding one's body (decisional autonomy) as part of the right to privacy, criminalisation of sex work based on social morality as public interest is simply not tenable anymore.

In Sahyog Mahila Mandal and Others versus State of Gujarat and Others (2004), a division Bench of the Gujarat High Court upheld the constitutionality of Sections of the ITPA that, according to the petitioner, targeted sex workers. This included the prohibition on prostitution in public places and power of search in absence of warrant. The argument that sex work falls under the right to practice profession under Article 19 was rejected, while other restrictions on movement of sex workers were justified as being a reasonable restriction under Article 19 (2).

The reasoning of the court was not based on public or popular morality, but on the idea that sex work is inherently degrading and that recognising sex work as work would amount to an open invitation to trafficking of women. The court built its reasoning on the narrative that conditions surrounding sex work make it tantamount to slavery which is prohibited by Article 23 of the Constitution. As per the Court, the choice of sex work is a product of lack of choice: "Women in prostitution usually begin their career due to poverty and are kept indebted and poor by pimps and other middlemen who control their earnings and movement… The victims of the vice of prostitution believe that they have no viable alternative but to continue in the field of their exploitation for survival. Poverty and indebtedness make exit from prostitution impossible for such women."

Although this narrative cannot be said to be untrue, it can certainly be argued that it is only partially true. A study conducted by SANGRAM, interviewed 243 women from four different states in India, who were "rescued" by police authorities in raids— 79 percent (193 out of 243) of the women stated that at the time of the raid they were voluntarily in sex work and had not wanted to be "rescued"; 77 percent (168 out of 218) of the women returned to sex work upon being released.

One of the important reasons given for continuing sex work was the income and independence it provided. This coupled with the fact, that multiple women have approached constitutional courts claiming voluntary sex work as a profession under Article 19, means that one cannot simply dismiss these claims by viewing sex workers as victims of circumstances.  

For this reason and others, the PUCL and J. Nagmohan Das report, recommended that the ITPA, 1956 be repealed and sex work be decriminalised. In its stead, it proposes a labour law response that sees sex workers as rights-bearing individuals, and cites the report of the second National Commission on Labour which holds that sex workers have to be considered as self-employed workers and should have facilities to be registered as such with access to welfare schemes, medical benefits, insurance schemes and other benefits just as other self-employed workers.

It is important to note that this is not an argument to repeal criminal laws for trafficking and exploitative practices in the profession. Those can be and need to be tackled with a strong anti-trafficking law which does not conflate voluntary sex work with trafficking and other exploitative practices. Unfortunately, the new versions of the anti-trafficking Bills, including the latest one in 2021, follow the same path of criminalising the lives of sex workers along with other draconian measures.

A coalition of civil society organisations, including sex worker associations, have submitted a detailed critique of the Bill to the Ministry of Women and Child Development, which in effect criminalises vulnerable individuals in the absence of programmes and measures that address the factors that make persons vulnerable to trafficking.

For voluntary sex work, the labour law framework is more in line with constitutional morality, as opposed to the carceral approach of criminal law, as it is centered on bodily autonomy and self-determination (a facet of the right to privacy).