Legal panacea for ills of sex workers
Even after the Supreme Court judgment uphold the dignity of sex workers, a lot more needs to be done on the ground to ensure they really lead a dignified life
The Supreme Court recently upheld ‘sex work’ as a profession and issued a slew of directions to uphold the dignity of sex workers. However, the term ‘sex worker’ quoted in the landmark judgment as well as used otherwise appears to be impolite and offensive. Being one of the oldest professions, there are hundreds of names globally associated with the ‘disgraced’ professionals, to mention a few: courtesan, tawaif, drab, hooker, hustler, moll, tart, kasbi, randi, kunchni, paatar, patariya, beswa, vaishya, kaveri and ganika.
Not branding them as ‘sex workers’ or ‘prostitutes’, I would prefer to call them with some lighter term such as ‘Bobby’ or at the most ‘tawaif’ for the simple reason that if you intend to give dignity to a profession, you need to begin that expression with a suitable title or nomenclature, not only to redefine the nature of job but to remove the prevalent ‘scarlet letter’.
The landmark judgment, besides being historic, was necessary because India is no stranger to sex work. It is a historically prevalent profession, albeit under unsafe conditions. Leonard William King, in the Code of Hammurabi, says, in 1780 BC, out of 282 Hammurabi codes, six codes (178, 179, 180, 187, 192, 193) mentioned the rights of a prostitute or her children. In 1075 BC, the Code of Assura distinguished prostitutes from other women by prescribing a dress code. Sarah B Pomeroy in Ancient Greece — A Political, Social and Cultural History (1999) mentions: “Hetaira …. a ‘female companion’ ….was the term normally used for courtesans by classical Athens.”
WC Firebaugh, who translated Petronius Arbiter’s work, The Satyricon, referred therein Roman Regulation of 80 BC, which states: “Rent from a brothel was legitimate source of income… Procuration also had to be notified before the Aedile (Government regulator).” In 180 BC, Caligula inaugurated a tax upon prostitutes (vectigal ex capturis).
In ancient India, there was the practice of rich people asking for ‘Nagar vadhu’ (bride of the town) to sing and dance. The State courtesans were described as ‘Vaishali ki nagar vadhu’. Amrapali was one such example. Writing about 19th century Awadh (Lucknow), Adrian McNeil of Macquarie University observed that courtesans had royal patronage and were “well provided for”. There were many examples in Lucknow where tawaifs left their profession and married respectable persons. However, a man in love with a prostitute had to shell out a hefty amount to the owner of the brothel for the release of his beloved.
Over the years, people have debated whether this profession should be legally sanctified. In India, nearly three million tawaifs, with an overwhelming majority in the age group of 15-35 years, are operating. The demand for minors increases year on year and such demand is highest among older clients. To address these nightmarish phenomena, the Supreme Court took a lead in regulating and humanising sex work in the case of Budhadev Karmaskar Vs The State of West Bengal & Others dated May 19, 2022. In July 2012, the court while appointing a broad-based committee had formulated three questions: Prevention of trafficking; rehabilitation of sex workers who wish to leave the work; and conditions conducive for sex workers who wish to continue, with dignity. The order dated May 19, 2022, adds: “After conducting a detailed discussion with all the concerned stakeholders, the panel submitted a comprehensive report on the terms of reference. When the matter was listed in 2016, this court was informed that the recommendations made by the panel were considered by the Government of India and a draft legislation was published incorporating the panel’s recommendations. Thereafter, periodically adjournments were taken by the Union of India on the ground that a Bill is on the anvil. As the legislation has not been made to date even though the recommendations have to be implemented, we were exercising our powers conferred under Article 142 of the Constitution. In the catena of decisions of this court, this power has been recognised and exercised if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.” This matter has been listed for July 27, 2022.
The exercise started after the judgment dated August 2, 2011, headed by Justice Markandey Katju, initiating its order dated February 14, 2011. By that order, the court dismissed the appeal of the appellant, who was convicted for murdering a sex worker in a red light area in Kolkata. The court suo moto converted the case into PIL in order to address the problems of sex workers.
In its order of February 14, 2011, the court observed: “This is a case of brutal murder of a sex worker. Sex workers are also human beings and no one has the right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards sex workers. They are also entitled to a life of dignity in view of Article 21 of the Constitution.” However, despite the court’s best intentions, there are many gaps to be addressed for which the Immoral Traffic (Prevention) Act, 1956, needs complete overhauling in a time-bound manner. Also, the order is silent on the issues of call girls and hetero-male prostitution (gigolos). Such issues have not been discussed in the judgment.
(The writer is a legal journalist and author. The views expressed are personal.)
Source: The Pioneer
