By Sunitha Krishnan

Many people have asked directly or indirectly why I am opposed to the advisory on 'Human Rights of Women in the context of Covid19' issued by NHRC to the Government.

So, at the outset let me clarify the advisory is a laudable effort to ensure that all women including women in "sex work"(I have serious problems with this word) who have gone through extremely challenging times due to the Covid pandemic have been recognized and some recommendations have been made to ameliorate the situation.

So where is the problem?

There are two from my perspective:

  1. Recognizing Women in sex work under the 'Women at Work' category and describing them as work in informal space.
  2. Directing the Government under Clause III B (ii) to provide registration to these women as workers which state, "sex workers may be registered as informal workers and be registered so they get worker's benefit"

So why I am I outraged?

As a deeply convinced abolitionist, I personally believe that the flesh trade is the oldest form of oppression in the world. Triggered by a patriarchal framework that believes in commodifying a woman's body as a sexual object & has normalized the sale of sexual services as a matter of social/community requirement flesh trade has been here for centuries in various forms. In India, it has also been an oppressive means to force and coerce women from the lowest caste to remain in a submissive state.

But today for those fighting for 'sex workers' rights it is their firm belief that it is a matter of a woman's 'self-determination' to decide what she wants to do with her body.

How I wish it was as simple and straight forward as people make it sound.

Before we go any further, let's understand the Indian law.

Is the sale of sexual services illegal in our country?

'No' so long as it is between two consenting adults in a private space.

But the moment the selling or buying comes into a public space it becomes illegal. So, soliciting is illegal, maintaining a brothel is illegal; living on the earnings is illegal and even detaining a person in a brothel is illegal.

Prostitution, as we see it today, is about pimps, brothel keepers and a whole lot of other stakeholders who live on the earnings of a woman who is selling her body?

Are these the persons who have to be registered? Because all of them are part of this outfit called 'sex work'.

The thousands of women I have met who were removed from brothels kept repeating multiple times during the time of removal/rescue that they were 'here by their voluntary choice'. The same women when removed from that influence and relocated to a safer place spoke at length of a journey of constrained choices, deception, and exploitation. A significant number of them were children when they were inducted into the trade. All this and more pointing out to trafficking in persons. This apart when you study the socio-economic profile of these persons, a huge majority are Dalits or tribal. Communities who have been socially oppressed for centuries and are forced, coerced, or deceived to choose this option. So, by using fancy names does the oppressive systems become now liberating.

The question then is how will the registration as 'workers' rule out that a victim of organized crime ie. Trafficking is not shown as a person who has voluntarily chosen this trade.

Prostitution is a term which our law defines and so I will use that with confidence. The Immoral Traffic Persons Prevention Act defines 'prostitution' as sexual exploitation of a person for commercial gains. And that is the world of exploitation that I have witnessed across the country from red light areas of Budhwarpet (Pune), GB Road (Delhi), Kamatipura (Mumbai), Sonagachi (Kolkata) to houses, apartments, resorts, hotels, spas, beauty parlors across the country.

No police officer raids a place where two consenting adults have 'paid sex'. It is mostly through a 'pimp'/broker' that contact is made and thereafter the commercial transaction with multiple third parties such as organizers, brothel keepers, and agents established, which is followed by a raid/rescue.

So, when we say registration, are we saying 'register' these layers of exploitation and provide it legitimacy?

So, what does the Civil Society want?

First of all, civil society is not a homogenous body. The larger civil society has three schools of thoughts one who believe this is a 'necessary evil' and should continue as it provides safety for their daughters, the second who believe that 'sex work' is a liberated term and provides safe framework for operations and a third group who believe that this should end.

In terms of those who are working directly for this cause from multitude & diverse position I would say again there are largely three groups.

The first group who works for the rights of 'sex workers' and believe that dignity and liberty is within 'sex work' and it should be considered as a 'voluntary choice 'and represents 'self- determination' of those persons. Organizations such as SANGRAM (Sangli), Saheli (Pune), National Network of Sex Workers, Lawyers Collective come under this category.

There is a second group who also believe in 'sex workers' rights but have entwined themselves in the anti-trafficking brigade and prefer to be identified as anti-trafficking organizations and believe 'sex workers' should have rights at the same time the institutional elements such as brothel keepers, pimps, and brokers should be eliminated. Organizations such as Sanjog (Kolkata), HELP (Ongole) fall into this category.

And there is a third group with organizations like Prajwala (which I have founded), Shakti Vahini, Arz (AnyayRahitZindagi) and some others who are not only part of the anti-trafficking brigade but also believe that a person's dignity and liberty is outside 'sex work' as this trade is intrinsically exploitative and is essentially a human rights violation and therefore work towards 'sustainable exit options'.

What is common for all the groups? We all believe unanimously that relief and support must be provided.

While the pro 'sex workers' believe that it has to be done by maintaining and legitimizing 'sex work', those of us who believe that 'sex work per se is fundamentally flawed and has only sustained oppressive systems believe all relief should be given paving way for rehabilitation.

The position held by us is the same position taken up both by the Government and the Supreme Court.

In an important case in the Apex Court, Budhadev Karmasakar Vs State of West Bengal, Justice Gyan Sudha Mishra clarified and I quote:

"1. While concurring with the views of my learned brother Justice Altamas Kabir, I prefer to add in regard to the second issue that this Court should not be misunderstood to encourage the practice of flesh trade or advocate the recognition of sex trade merely because it has raised the issue to emphasize the rehabilitation aspect of the sex workers, for which this Court had taken the initiative right at the threshold. I consider this essential in order to allay any apprehension which prompted the Union of India to move this application for modification, by highlighting that the sex workers although have a right to live with dignity as the society is aware that they are forced to continue with this trade under compulsions since they have no alternative source of livelihood, the collective endeavor should be there on the part of the Court and all concerned who have joined this cause as also the sex workers themselves to give up this heinous profession of flesh trade by providing the destitute and physically abused women an alternative forum for employment and resettlement in order to be able to rehabilitate themselves. I, therefore, wish to reiterate by way of abundant caution that this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner even when it had started earlier in its terms of reference regarding conditions conducive for sex workers who wish to continue working as sex workers with dignity.

  1. Thus, when we modify the earlier term of reference and state regarding conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution, the same may not be interpreted or construed so as to create an impression or draw an inference that this Court in any way is encouraging the sex workers to continue with their profession of flesh trade by providing facilities to them when it is merely making an effort to advocate the cause of offering an alternative source of employment to those sex workers who are keen on rehabilitation. When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided an alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State Authorities to provide facilities to those sex workers who wish to promote their profession of the sex trade for earning their livelihood, except the basic amenities for a dignified life, as this was certainly not the intention of this Court even when the term of reference was framed earlier.
  2. We, therefore, wish to be understood that we confine ourselves to the efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance, or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of the sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above. "

So why has NHRC given such an advisory which is even violative of the Apex Court's position?

What should NHRC do?

I believe it should modify the contentious advisory without compromising on providing all relief and support to all marginalized women.

With respect to women in prostitution, the advisory should direct the Government specifically through the Ministry of Health & National AIDS Control Organization(NACO) to reach out to all the persons in prostitution whom they are already directly in contact through their Targeted Interventions Programs to provide sustenance support till the end of Covid pandemic and through the Ministry of Women & Child Welfare, Ministry of Labor & Employment and Ministry for Skill Development and Entrepreneurship to provide support for alternate livelihood, livelihood training and micro-credit support. As NACO is in direct contact with these vulnerable groups they could facilitate through a special cell all of them receive civic identities such as Aadhar Card and Voter Card on a priority the basis to access the Government schemes.

I believe the Government should take this up as this is the need of the hour. For all of us who are witness to the plight of the most vulnerable, this group stands out. Each one of us has in our own capacities reached out with support but at the end of the day, it is only the Government that has the capacity to provide sustained support. Our committed support stands with the system to ensure that the last beneficiary is identified and supported.

We are standing today at an important point of history where we have to collectively take a decision whether we want to legitimize centuries old oppressive system ( you may call it any fancy name) or bring in a new world of equality, liberty, and dignity by building bridges for the oppressed to exit and access support.

Sunitha Krishnan

Sunitha Krishnan a recipient of the fourth highest civilian honor Padmashree is an eminent human rights activist and film-producer and is nationally and internationally known for her fight against sex crimes and trafficking of women and children for the purposes of commercial sexual exploitation. As the co-founder of Prajwala, a pioneering anti-trafficking organization, she has been instrumental in rescuing thousands of victims from sexual slavery.

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