Sex Work Is No Crime

For the last year and a half, sex workers’ organisations from Kolkata to Kerala have been protesting the proposed amendments to the Immoral Traffic Prevention Act (ITPA), 1956, which will leave them worse off than they already are. But who’s listening?

On March 8, 2006, even before the amendments had been introduced in Parliament, more than 4,000 sex workers marched the streets of Delhi to draw political and public attention to the fact the amendments would deny them their already meagre livelihoods. Two months later, the department of women and child development introduced exactly the same set of amendments in Parliament.

What are these amendments and why are sex workers against them? To begin with, all customers and clients would be treated as criminals. This may satisfy those who see making money from sex as a crime or a form of coercion. And it will help put more hush money in the hands of conniving cops. But it makes little or no sense to sex workers or to those who recognise adult sex work as commerce rather than coercion, consensual rather than criminal.

At a conceptual level, the issue is this: why should any consensual sexual activity between adults — heterosexual, same sex, in exchange for money, within marriage or outside of it — be viewed within a criminal framework at all? The keywords here are ‘consent’ and ‘adult’. If these two conditions are met, there is no crime being committed. Unfortunately, that is not the view of prevailing wisdom.

As ITPA stands today, prostitution is not a crime per se. The law regulating it is ambiguous. When introduced in 1956 as SITA (the Suppression of Immoral Traffic Act), lawmakers did not want to penalise women engaging in prostitution, whom they saw as victims. Instead, they decided to punish those who profited from or exploited these women. Hence, prostitution did not get defined as a crime. But many conditions surrounding it got defined as crimes: soliciting, running a brothel and pimping. This legal framework was retained when the SITA was amended into the current ITPA in 1986.

From the point of view of women in prostitution, it makes no sense to not be able to solicit. It’s like not being able to advertise your business. Studies have shown that despite the noble intentions of Indian lawmakers, the implementers of the very same law — the police — have used every means possible to harass sex workers on charges of soliciting and enrich themselves by taking petty bribes in lieu of dropping criminal charges. Jean D’Cunha’s study in Mumbai between 1980 and 1987 clearly showed that the worst victims of ITPA were prostitutes. The number of women rounded up for soliciting under the Bombay Police Act and ITPA far exceeded the numbers of brothel keepers or pimps arrested under the same laws.

Even today, sex workers all over India are routinely arrested even when not soliciting. AIDS activists and peer educators are harassed by police while distributing condoms and educating sex workers about HIV prevention. The proposed ITPA amendments would lift the ban on soliciting. This is a welcome move. But what is the point of removing penalties against soliciting, if the police can continue to harass sex workers under the provision that criminalises clients? The proposed amendments only replace one set of ambiguities with another.

If there is one thing that the proposed amendments to the ITPA reflect, it is confusion. Trafficking is confused with prostitution, the result being the legislative framework does justice to neither. Although those who advocate the abolition of prostitution have always insisted that trafficking and prostitution are one and the same, the experiences of prostitutes show that they are not. Sure, trafficking and prostitution are linked but while some areas might overlap, large areas do not. It is true that girls and women in India are tricked, forced and sold into prostitution, just as they are trafficked for domestic work and coerced into marriage against their will. But large numbers of Indian women don’t become prostitutes only through trafficking. Usually, many enter the trade to earn a living in the absence of other opportunities for employment, a result of being socially, economically and politically disadvantaged.

Both ITPA and the proposed amendments reflect a fundamental confusion about the role of law. What is the role of criminal law in contemporary society? Is it to regulate crime? Or is it to regulate public morality? How does law constitute itself or get made in a democratic society?

It does not get made from above, by the ruling class who decide how the masses should be regulated. It is a result of processes that hear the voices of and account for the concerns of those who are most affected by the laws being made.

For more than a year now, women in prostitution and sex workers’ rights groups have actively lobbied members of the parliamentary standing committee set up to consider this matter. Earlier this year, the proposed amendments were referred back to the health ministry. Only recently, in a landmark decision, the ministry recommended that the amendment to criminalise clients and sex work be dropped. It’s high time we listened to sex workers before actively destroying their livelihoods.