Navigating the Morality — Human Rights Divide: Charting a Path for Sex Workers in Indian Jurisprudence

Introduction

The aphorisms in the ancient Hindu text “Manusmriti” emphasises the reverence of women as a means to please the Gods.¹ This concept of women’s reverence is prevalent in various religions in India and has influenced societal norms and legislation.² The legislation surrounding prostitution in India criminalises it as exploitation or abuse, excluding voluntary sex services.³ However, due to deep-rooted moralism, transactional sex is often considered exploitation, perpetuating social stigma. The status quo also resulted from the extant ambiguity at the international fora. Internationally, conventions have also contributed to the ambiguity surrounding the legality of prostitution. However, over time, international fora remediated and constructed jurisprudence interwoven in a “feministic approach”, wherein, though explicit legalisation remained dormant owing to the differing conflicting values, nonetheless, the concomitant human rights and concerns were addressed by carving corresponding enforceable rights.

In contrast, Indian jurisprudence remains trapped, denigrating the sex workers as second citizens in their own country. The need to prioritise human rights over morality in Indian jurisprudence is crucial to ensure the intended purpose of protecting women while recognising their legal and human rights, which could be achieved through simultaneous legislative and policy actions. There is a dual need: firstly, to establish specific laws that explicitly legalise consensual sex services and offer enforceable rights in this regard, and secondly, to formulate adaptable societal policies that define the boundaries between consensual and non-consensual sex services while also requiring awareness campaigns to foster the evolution of societal values. It is crucial to understand that laws cannot exist in isolation. Hence, this blog explores the moral and normative forces in Indian society, international perspectives, and potential solutions and concludes with a hope for a more progressive approach.

Ingrained morality halting legislative and constitutional progression

The Indian Constitution provides a normative framework that shapes legislative mandates in India. Constitutional provisions, including the Preamble and specific articles, outline comprehensive women’s rights. Article 14 establishes substantive equality, allowing positive discrimination to empower marginalised communities.⁴ Article 15 prohibits discrimination based on various grounds and permits special measures for women and children.⁵ Article 21 encompasses the rights to life and personal liberty, including dignity and autonomy.⁶ Articles 23 and 24 criminalise human trafficking, slavery, and precarious employment of children.⁷ These fundamental rights are enforceable, emphasising their significance.

The aforementioned provisions acted as torchbearers and paved the avenue for the Immoral Traffic (Prevention) Act, 1956⁸ which is the apex law dealing with the exploitation or abuse of women. It criminalises coerced sexual activities and the administration of brothels, living on earnings from prostitution, public soliciting, and proximity to specific public spaces. Section 2(f) explicitly defined “prostitution” by the unequivocal phrase “exploitation” or “abuse” for “commercial purposes”, unambiguously confining the coverage only to the “coerced sexual activities”.⁹ Further, Section 3 interdicts “brothels” whereas Section 8 criminalises “public soliciting”, and the “combined reading” would lead to an “interpretation” that the “voluntary sex service” undertaken privately would not attract “illegality”.¹⁰ The “literal interpretation rule” mandates the statutory interpretation per the “plain” and “literary meaning” unless the “contrary definition” manifests from the “legislature’s language”.¹¹ However, the lack of distinction between voluntary and involuntary sex services allows moralistic interpretations that harm sex workers. The lacunae pertaining to the consent are abused to construe any transactional sex, whether voluntary or involuntary, as exploitation, resulting in penalising and harassing sex workers. The sociological survey brought attention to a significant finding from 1980 to 1987, approximately nine thousand sex workers in Mumbai were arrested, even though there were testimonies providing evidence of their voluntary engagement in the profession.¹²

The Penal Code’s provisions on offences related to morality and decency are broad and vague and are often misused to intimidate sex workers. For instance, Section 268 deals with “public nuisance” and entails “annoyance to the public” as a “broad standard”, thereby recurrently invoked to intimidate and harass.¹³ Likewise, Sections 269 and 270 penalise the “negligent and malignant” actions resulting in “infectious spread”, resultantly, utilised as an avenue to criminalise the “sex workers” whenever there emanates an increase in the “sexually transmitted diseases” in the community, irrespective whether there persisted the “nexuses” between the sex workers and the impugned diseases.¹⁴ Remedies and appeals against abuse are rarely accessible due to economic insecurity, lack of alternative job opportunities¹⁵, and a backlog of pending cases¹⁶. Resultantly, the cases are not even lodged in the first place. Nevertheless, to emphasise the severity of the situation, one can refer to the submission made by the National Network of Sex Workers to Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)¹⁷. In this submission, they highlighted the violence perpetrated by law enforcement officials. Despite these violations, the authorities responsible for enforcement remain unpunished, resorting to tactics such as demolishing houses and other intimidating actions to deter victims from filing complaints.¹⁸

In a recent case, the Supreme Court recognised the realities above and directed the enforcing authorities to refrain from their moralistic prejudices. The Court mandated that the existing law be enforced per the consent-based framework, which means that individuals who willingly engage in the profession should not face penalties, harassment, or victimisation unless coerced.¹⁹ Nevertheless, despite legislation and corresponding judicial decisions, sex workers face exploitation and abuse instead of protection. This unfortunate situation arises because the Central Government has not taken any related actions in response to the court’s pronouncements. Unless significant changes occur, the exploitation of sex workers will persist, and improving their conditions will remain a utopian concept.

Transitioning international forums: From indistinct narratives to progressive feminist approach

The discourse on human rights at the international level began with the Universal Declaration of Human Rights (UDHR) in 1948, which established the universal consensus on the inherent dignity and inalienable rights of all individuals.²⁰ This Declaration served as the foundation for numerous human rights conventions that followed. However, the progress in the international forum has been inconsistent, particularly regarding the flexibility needed for universal ratification. One area where this wavering progress is evident is in the discourse on the rights of sex workers. The International Convention for the Suppression of Traffic in Persons and the Exploitation of Women, adopted in 1950, criminalised the procurement of individuals for prostitution purposes, regardless of their consent, in Article 1.²¹ This approach reflected a prevalent protectionist view, treating sex workers as victims needing safeguarding. However, this approach inadvertently led to the continued suffering of sex workers in many countries, including India, where the Immoral Traffic (Prevention) Act of 1956 failed to recognise voluntary sex work explicitly.

Over time, the international community recognised the limitations of this approach and gradually shifted away from an indistinctive regime. While there is still no explicit recognition of the legality of consensual sex work in international conventions, indirect avenues have been created to alleviate the situation of sex workers while ensuring universal ratification. Firstly, the imperative need to contend with direct and indirect discrimination has been addressed with an overarching goal that human rights are protected, respected, and fulfilled.²² Secondly, to concretise equality, international conventions also include specific provisions to address social and cultural perceptions that contribute to bias and discrimination. For instance, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) implemented obligations to overcome gender stereotypes and recognise the positive contribution of women in society in Article 5.²³ Likewise, other conventions have followed suit, implicitly or explicitly addressing gender stereotyping.²⁴

Additionally, international conventions addressed the root causes of many women engaging in sex work, such as the lack of social security and alternative livelihood opportunities. The International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 9, mandates State parties to provide social security and insurance, which can help prevent women from resorting to sex work due to a lack of other means of survival.²⁵ Likewise, Article 11(1)(e)²⁶ read with Article 14(2)(c)²⁷ of CEDAW, requires the implementation of the social security provisions to ensure due protection vis-à-vis women’s rights. The international discourse on human rights and sex workers has evolved, recognising the need for flexibility, and protecting individuals’ rights. While the legalisation of consensual sex work is not explicitly recognised, international conventions impose positive obligations on States to eliminate discrimination, challenge stereotypes, and provide social security to address the root causes that lead individuals, particularly women, to engage in sex work, thereby enunciating the workarounds grounded in feministic perspective, if not directly recognising the voluntary sex services.

India’s conformity to international jurisprudence: Navigating the nebulous realm

The international forum acknowledges the participation of sovereign State parties as crucial actors in decision-making regarding conventions. Due to diverse moral and ethical perspectives on sex work, it is challenging to implement a rigid, non-criminalising framework. However, domestic jurisprudence can construct a legal reality that aligns with societal conditions. In the Indian legal discourse, sex work itself is not criminalised, but human rights violations stem from its moral stigma, leading to bias in law enforcement.

To address existing loopholes and protect the rights of sex workers, comprehensive legislation is needed that explicitly recognises and safeguards their rights. This legislation must be accompanied by effective implementation of guiding policies concerning consent evaluation and awareness campaigns to influence societal perspectives. The guiding policies should adopt a multifaceted approach. Firstly, establishing informed consent requires a thorough inquiry beyond surface level understanding. It involves assessing an individual’s comprehension of risks and implications and their awareness of alternative options engaged in sex work. This process ensures that consent is informed, voluntary, and free from coercion and manipulation.

Secondly, vulnerability assessments need to be completed, considering factors such as age, socio-economic status, education, and access to support systems. Identifying vulnerabilities is crucial as specific individuals within the spectrum are more susceptible to coerced sexual exploitation. Thirdly, determining control and agency is essential. Analysing signs of control over working conditions and the ability to negotiate terms and set boundaries reveals whether an individual is being exploited. Restrictions on movement, isolation from support networks, and physical or psychological marks may indicate otherwise.

In addition to establishing a consent regime to distinguish between voluntary and involuntary sex services, the policy should mandate awareness campaigns and provide access to support networks. Recognising that law does not exist in isolation, raising awareness and shaping societal values are essential. Furthermore, providing support services such as legal aid, counselling, healthcare, and rehabilitation is crucial in constructing an environment where sex workers feel safe and empowered to make informed decisions about their involvement in sex work.

This comprehensive approach aims to bridge existing gaps and promote the well-being and agency of sex workers. Furthermore, it is vital to highlight the unfortunate lack of comparative jurisprudence regarding the essential guiding factors for distinguishing between voluntary and involuntary sex services. Consequently, Indian policymakers have a unique opportunity to significantly impact this field, as existing models such as the Nordic²⁸, German²⁹, and Canadian³⁰ do not adequately address this crucial distinction.

At the secondary level, the legislation should include core human rights, firstly, the right to health services and information. Stigmatisation prevents sex workers from accessing necessary healthcare, including testing for STDs, HIV, and AIDS.³¹ Such instances impede the “safe access to sexual and reproductive health services”, as the sex workers feel unsafe disclosing their occupation and seeking the required medical attention and information, which could enable STD/HIV/AIDS prevention and protection. International human rights instruments like the ICESCR and CEDAW in Article 12³² and the Convention on the Rights of Persons with Disabilities (CRPD) in Articles 23 and 25 already establish the “right to sexual and reproductive health”.³³

Furthermore, the legislation must guarantee the occupational health and safety rights of sex workers, ensuring they have fair and favourable working conditions equivalent to those available in other professions. This right is closely intertwined with the right to privacy, as indicated by Article 17 of the International Convention on Civil and Political Rights (ICCPR)³⁴ and Article 22 of the CRPD.³⁵ These conventions recognise that the right to privacy is essential in safeguarding an individual’s autonomy over their body and career choices. Likewise, it was reflected by the Supreme Court in K.S. Puttaswamy case, wherein an individual’s right to be their guardian vis-à-vis whether bodily or mental and spiritual was explicitly recognised.³⁶ Additionally, the case of K.L. v. Peru saw the United Nations Human Rights Committee acknowledging the importance of an individual’s autonomy rights regarding their own body within the broader privacy rights framework.³⁷ Therefore, to guarantee that the individual’s bodily autonomy rights are not merely granted in formality but are also effectively respected and protected, it is crucial to empower sex workers with occupational rights.

Lastly, this legalisation would also address the issue of corruption within law enforcement, where police officers engage in violence, extortion, and harassment against sex workers with impunity.³⁸ The police can easily commit sexual abuse and exploitation with the jail free card, as the sex workers, owing to the “threat of livelihood”, would not even report such odious crimes. Conversely, legalising voluntary sex work would establish a fair and equal justice system, enabling sex workers to access justice and receive equal protection. Further, the collaboration between sex workers and the police could also contribute to reducing crimes like human trafficking.³⁹

Conclusion

In conclusion, the complexities surrounding the status of sex workers in India demand a progressive approach that prioritises human rights over moralistic biases. The ancient Hindu text “Manusmriti” highlights the reverence for women, but contemporary legislation criminalises sex work as exploitation, perpetuating social stigma. While international fora have evolved toward a feminist approach, India’s jurisprudence remains trapped, treating sex workers as second-class citizens. To rectify this situation, a comprehensive legislative and policy framework is necessary.

Legislation should explicitly recognise and safeguard the rights of sex workers, distinguishing between voluntary and involuntary sex services through informed consent and vulnerability assessments. Awareness campaigns and support networks must be mandated to shape societal values and empower sex workers to make informed choices. The legislation should further ensure access to healthcare, including sexual and reproductive health services and occupational health and safety rights, guaranteeing fair and favourable working conditions. Addressing corruption within law enforcement and establishing a fair justice system for sex workers will further protect their rights.

By embracing a comprehensive and progressive approach, India can bridge existing gaps, protect the agency and well-being of sex workers, and uphold human rights principles. This journey towards inclusivity and empowerment leads to a more equitable and just society.