Legislating morality

Laws on sex work remain among the most ambiguous pieces of legislation in Southasia. Each country has specific laws on the issue, with those that share a colonial past retaining penal codes framed by the British in 1860. Thus we find identical or similar statutes with regard to public decency, obscenity, morality and public health, which in turn are often used against sex workers. Common features include the penalisation of the selling or buying of services for the purpose of prostitution, and provisions such as Section 377 of both the Indian and Pakistani penal codes, which categorise homosexual acts as an offence.

Many laws limit the definition of trafficking to only those acts involving prostitution, a focus that dates back to a United Nations convention on trafficking and prostitution from 1949. The SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, signed in 2002, continues this exclusive focus of prostitution as the end point of trafficking. There is no doubt that women are trafficked into sex work, but trafficked people are also forced into, for instance, domestic labour, begging and camel riding. No matter the work they are forced to do, the violence and injustice faced by those who have been trafficked, in terms of working conditions, safety and health, are rarely addressed due to the exclusive preoccupation with prostitution. In this way, the focus also becomes inexorably mired in sex and morality.

Even in societies with a large number of oppressed categories of people, sex workers continue to come almost at the bottom in terms of society's view of them. Morality has been the dominant prism through which sex work has been viewed, and the impact of this is visible in laws that continue to regulate the practice. Sex work, the term being increasingly used in part to highlight the respectability of work itself, finds no place in any law in the region today. Instead, prostitute and prostitution are the vocabulary of law, terms that have gained centuries' worth of negative connotations.

It is interesting that, for the most part in Southasia, sex work/prostitution specifically is not declared illegal. Still, a number of activities linked with this work are criminalised, including solicitation, running a brothel and living off the earnings of prostitution (including, at times, for children living off their mother's earnings). Punishment for clients – a step vehemently opposed by sex workers as an attack on their livelihood, and a step that would drive prostitution underground and lead to more hazardous working conditions – is now proposed to be introduced in the Indian law. The laws seem to be basically sympathetic, viewing the sex worker as a victim (albeit an oft-criticised view) and attempting to target traffickers and those forcing individuals into sex work.

In the colonial era, with the purpose of supplying disease-free women to British troops, 1868 saw the enactment of the Contagious Diseases Act, which provided for mandatory testing for venereal disease and licensing of sex workers. Late-19th-century concerns about women being led into immorality and state support to 'vice' led to the repeal of this legislation. However, Victorian notions of the respectable woman having no sexual desire, and the binary of 'good women' and sex workers as bad women and/or helpless victims forced into sex work and needing to be saved, remained and continue to impact post-colonial legislation dealing with the issue. Today, any ostensible sympathy notwithstanding, sex workers seem to bear the brunt of a high degree of police harassment in the shape of beatings, detention and worse. Further, in practice sex workers are often equated with beggars and vagrants by the law, and thus punished under anti-vagrancy legislation and subjected to similar rehabilitative measures.

The typical approach to policing sex workers is also problematic. Many prosecutions for offences such as soliciting or running a brothel are based on a method of sending decoy customers. Such sting operations are otherwise used only in drugs-related cases, with both evoking strong moral disapproval and stigmatisation. In other offences, such methods are not considered acceptable – even prompting the Sri Lanka High Court to observe in one such case that it seemed as though it was not the accused but rather the police who did the soliciting, describing their conduct as that of 'would-be patrons'. In a similar vein, the Supreme Court of India, in a case over the running of a brothel, disapproved of the practice of sending young men as decoy customers to 'aid an act of prostitution'. Together, these and other legal warnings would seem to indicate the need for a re-examination of the whole decoy-based approach to tackling sex work.

No choice
Southasia's various pieces of legislation on prostitution do not make a distinction between adults and minors, including with regards to the 'rescue' of individuals from brothels. Among the numerous ramifications of this lacuna is the complete denial of individual will on the part of a legal adult. In instances of brothel 'rescue', this results in adults being taken away without ascertaining their wishes, a violation of a sex worker's fundamental rights. For the purpose of 'reform', certain provisions even authorise the detention of 'rescued' individuals not accused of any crime – and for periods longer than the punishment prescribed for some actual offences.

This 'reform' ideology, which runs through much of the Subcontinent's legislation on prostitution, seems to reflect an approach of 'complete prohibition', a demand enjoying considerable support in many societies today. Around the world, women's organisations and NGOs are hard at work, arguing from the perspective that sex work should be outlawed entirely. Still, the old cliché about sex work – that it is the world's 'oldest profession' – does underscore the fact that the buying and selling of sexual services refuses to die out in almost all societies. Recognising this reality offers a second legislative option, that of 'regulation', which allows for state control over sex work through licensing, as is currently prevalent in Germany and the Netherlands.

Finally, a third alternative, vigorously advocated by some groups of sex workers, is outright decriminalisation, the full repeal of laws against commercialised sexual activity. Proponents of this option point out that state control or regulation would decrease the autonomy and increase the vulnerability of sex workers in a kind of 'licence raj', leading to extortion by inspectors and sundry state authorities. Further, it would create a category of unlicensed sex workers with unsafe and risky work conditions. At present, however, none of the countries in Southasia is looking at options of regulation or decriminalisation. In fact, due to proactive pushing by the US government, the trend is towards more stringent laws with regard to trafficking for prostitution and discouragement of the current approach of autonomy-focused sex-worker collectives.

Even as the matter of legislating sex work continues to be furiously debated, there is consensus that there should be prohibition of trafficking and the entry of minors into prostitution. Even here, though, differences of opinion exist on how to go about preventing both trafficking and entry of minors: broadly, whether to depend on 'raid and rescue', using the coercive arm of the law; or instead trying to work from within the profession, through self-regulatory boards. The latter approach is currently being tried out by organisations such as Durbar Mahila Samanwaya Committee, a collective of about 65,000 sex workers in Kolkata, and Veshya Anyay Mukti Parishad, a cooperative of sex workers in Maharashtra. Thus far, both have reported moderate success.

The future legislation on these two issues will have to emphasise the distinction between adults and minors, especially with regard to consent. Regardless of the initial mode of entry, the wishes of an adult individual must be ascertained before any prosecution or 'rescue' goes forward – an adult, after all, could well choose to remain in sex work, even accounting for the fact that the person might initially have been trafficked, illegally and unwillingly. Meanwhile, discriminatory provisions – giving powers to order the removal of a sex worker from a particular area, as in Indian law, or lesser punishment for rape of a prostitute, as in Nepal – need to be weeded out. In fact, the latter was indeed struck down as discriminatory by the Supreme Court of Nepal in 2002. In India, the Supreme Court has upheld the provision empowering a magistrate to remove a sex worker from a certain area, saying that it is not violative of equality on the grounds that it makes a reasonable distinction between 'respectable' and 'immoral' women – ordering only the removal of the 'bad' women.

One way or another, the legislation of sex work must be brought in line with the fundamental rights of sex workers to live in liberty and dignity, the right to move unhindered, the right to reside in a place of their choice and the right to migrate – in short, the right to live freely as an adult.

~ Rakesh Shukla practices law at the Supreme Court of India, New Delhi.