Authors: Tushar Behl and Deeksha Sharma
With a Dupatta covering her mouth, Riya wonders, “why is the government not helping us when we are religiously following the lockdown orders? If we don’t earn anything, what will we eat and how are we going to survive?” Rani joins the conversation and sighs, “Lockdown began way before for us, the nature of our work demands so. We are at greater risk from the virus, yet we are left to die”.
Just like Riya and Rani, most sex workers are the primary caretakers of their families. Sex workers have been the prime target of the COVID-19 pandemic. The workers are at an amplified risk of getting in contact with the virus if they continue to work- without work they cannot survive. Thousands of sex workers in Mumbai and Delhi, worst hit by the pandemic, are struggling for their daily livelihood. Even as the lockdown lifts partially, the sex trade is not allowed yet.
The law and the problems
In India, sex work is governed by the Immoral Traffic (Prevention) Act, 1956 (“ITA”). Public advertising of sex sale and the organization of commercial sex is illegal, but prostitution per se isn’t. However, when they are excluded from COVID-19 social protection responses, sex workers are faced with putting their safety, health, and life at an increased risk of survival.
It is important to recognize that the origins of this rhetoric lie within the larger context of the patriarchal social structure – the fundamental assumption that there are only two genders: male and female, thus maintaining the masculine’s dominance and hegemony over the feminine.
The ITA fails to protect the lives of the sex workers during this crisis when even a significant number of transgender persons are engaged in sex work. Sex workers staying in brothels have to pay a part of their earning from each customer as a daily rent to the brothel owners. The government of India recently announced that landlords cannot charge rent from tenants, and if they do, the tenants are free to dial 100. The emergency number ‘100’ is a curse for sex workers. On the face of it, the ITA does not criminalize prostitution, however, Section 20 empowers a Magistrate to initiate inquiry and issue notice to vacate on receiving information that the person residing in or frequenting any place within the local limits of his jurisdiction is a sex worker, causing him or her to withdraw himself or herself from that place and being unable to re-enter it. Additionally, Section 18 allows a magistrate to order the immediate closure of a place that is being used for prostitution if within 200 meters of a public place and direct the eviction from the premises where the worker is ostensibly carrying out prostitution. In this pandemic, these sections act like a vice.
The constitutionality of ITA was challenged in The State of Uttar Pradesh v Kaushalya. In this case, several prostitutes were required to be removed from their place of residence for maintaining decorum in the city of Kanpur, India, under S.18 and S.20. The Supreme Court of India enunciated that Section 20 of the ITA abridged the fundamental rights of the respondents under Article 14 (Equality before the Law) and sub-clause (d) and (e) of Article 19(1) (Right to Freedom of Speech and Expression) of the Indian Constitution. As per the Apex Court, “the very fact that she is a prostitute disentitles her to the most basic rights to residence in an area of her choice”. The Court emphasized the broad scope of Section 20 in the form of ‘surveillance’ over sexual conduct of all women in a public place. Hence, ITA ostensibly legalizes prostitution, while simultaneously ensures that the right to privacy, mobility, family life, and residence is restricted.
Moreover, ITA does not recognize ‘red-light’ areas. As a result, women in prostitution, even in the areas known for such activities, are liable to attract law enforcement agencies. It is accompanied by the Indian Government’s refusal to recognize that prostitution exists in India. Not only do these laws criminalize sex workers in the eyes of law, but they also endanger their existence.
The weight of Police Quotas on sex workers
A mention has to be made on the Quota System made by the police in this regard. The police are under extreme pressure from different quarters to prove their effective functioning by booking many cases, whether warranted or not, in order to fulfil arrest quotas. So they regularly book cases under various laws for each type of crime and bring the ‘accused’ before the Court. Sometimes, this force is wielded against the sex workers, mercilessly bullying them and imprisoning them with the oppressive clutches of ITA as protection. This power combined with Section 8 is misused by the police to place any woman behind bars. Section 8 punishes a sex worker drawing attention of potential customers from a visible, noticeable site. Additionally, all offences under this act are cognizable, i.e. police do not require any warrant to arrest or search under this section. That way, anyone can say that a woman was soliciting with her eyes since the price had been settled. The customer is not penalized and the touts go scot free, keeping with the underlying principle that prostitution is a necessary evil to satisfy men’s interest.
Where to now?
The landmark decision of Budhadev Karmaskar v State of West Bengal recognized the plight of sex workers and empathized that these women are forced to engage in prostitution, not for pleasure but because of abject deprivation (considering the bigger picture of women who are forced to work) instructing the government to open rehabilitation centres, imparting technical and vocational skills such as sewing, helping them find other means of subsistence. Following that, Section 21 has been inserted in the ITA as a regulation for State Governments to create and maintain safe homes, regulated by non-transferable licenses granted by them. An appropriate authority will be appointed to perform an inquiry into the application of the protection homes license. Under Section 23 of ITA, the government is empowered to make rules for licensing, management, and maintenance of protecting homes and ancillary matters.
This effectively brings us to the conclusion that the current legal framework in India which purports to protect these people often ends up being the biggest barrier against them. Even though Article 47 of the Indian Constitution mandates State to improve Public Health and to ensure proper nutrition and standard of living to its citizens, sex workers are majorly excluded from these initiatives and welfare programs.
Although very recently, a Public Interest Litigation (‘PIL’) was moved in the Hon’ble Delhi High Court seeking a direction to the Central and State government to implement effective measures- including food, accommodation, and medicine- for sex workers and the LGBT community amidst COVID-19. The PIL got dismissed by the Hon’ble Court, owing to a lack of ground work and research undertaken by the Petitioner. However, even while the Petition was dismissed due to the Petitioner’s error and lack of awareness, the Court stressed on the fact that the government has introduced many schemes to alleviate hardships to the all the ‘citizens’ of the country with no detail about the schemes specifically targeted towards sex workers.
The Pandemic has led to a calamitous health and economic crisis for these poor souls. Almost every sex worker in India does not have any bank account or an Aadhar card (Identification card) which is the most vital document that a citizen of India should possess. It was well-opined by Aakar Patel, the India head of Amnesty International, that:
“Making an Aadhar Card is a prerequisite to access essential services and benefits, the absence of which can obstruct access to several constitutional rights, including the rights of people to food, healthcare, education, and social security.”
This brings us to the question of morality. The difference between migrant labourers and sex workers is that the latter don’t have homes to go back to, and they have lesser people reaching out to them because of the increasing stigmatization. There is a need for a shared and comprehensive response from the community in the form of health services, modifications in legal and social policies, and decriminalization of sex work. This would reduce the stigmatized marginalization of sex workers and give them the life they deserve. This cry becomes louder, day by day as the existing health challenges are aggravated by the COVID-19 crisis.
 Fictional characters portraying realistic scene.