May 27, 2023
May 27, 2023
by Ponni Arasu
Mainstream discourse, by and large, has failed to recognize the considerable historical significance of two recent events. The first: changes in the Immoral Trafficking Prevention Act (ITPA) proposed by the Ministry of Women and Child Welfare, Ministry of Human Resource Development and the Government of India. The second: the first-ever nation-wide protest march of sex workers from all over the country on International Women's Day (March 8) 2006. These are the new contexts in which the history of brothel-based female sex workers in relation to law has to be seen.
The protest was against both the ITPA and the proposed amendments. ITPA criminalizes every aspect of the sex trade - brothel-keeping, pimping, soliciting customers for sex work, as well as 'living off' the earnings of a sex worker - except the act of prostituting oneself. The Act - conceived to protect the 'poor' 'innocent' women who are 'forced' into prostitution - has historically prosecuted this very community, due both to police brutality and judicial action based on real and imagined clauses in the ITPA. Sex workers across India loathe the law.
And now the amendments propose to give powers to lower-rung police officers (sub-inspectors, as opposed to the earlier provision which allowed only inspectors to intervene) to arrest not only pimps but also clients of sex workers. This clause will make sex work almost impossible, and will only drive it underground.
The story of the infamous ITPA can be traced back to the Contagious Diseases Act 1868 (CDA) enacted by the colonial government throughout British India. This law was based on the presumption that sex workers - and not their clients, soldiers of the British Indian Army - are the source of venereal diseases. This presumption is eerily similar to the present-day government policy around HIV/AIDS prevention, which deems sex workers - and not their clients - as one of the many 'target groups'.
CDA necessitated mandatory testing and confinement of sex workers working in cantonments, and likely played a significant role in the creation of what are now known as 'red light areas' in various cities. Sex workers, both by virtue of birth (such as devadasis, whose traditional occupation was slowly being disrupted) and by virtue of circumstance/choice seem to have begun to live and work in and around cantonments in Calcutta, Madras, Mumbai and other cities. CDA brought prostitution and the prostitute to the sphere of public discussion - for the first time - as an 'immoral vice' and as a 'disease', respectively.
The CDA was replaced by the 'Prevention of Prostitution Acts' and the 'Suppression of Immoral Traffic Acts' of the late 19th and early 20th centuries. This trend continued - with various Acts in British provinces - and was concretized in the passing of the ITPA of 1956 in independent India. In 1956, prostitution ceased to be a 'disease' and became a 'crime'. All of these Acts are based on the presumption that sex work, in spite of its historic invincibility, is a 'social evil' that needs to be abolished. In the process of abolition, these laws justify legally and socially, the harassment of all those involved in the profession.
Sex workers across the country have given us an alternative story. Their voices also have a history, although much harder to trace than that of the lawmakers. The National Archives of India provides us a treasure of entries in its indices of petitions filed by sex workers from the time CDA came into existence. These petitions are inaccessible, though, as they are allegedly 'brittle', 'destroyed' or are in the Indian archival records in London.
But even the index entries are informative. We learn that sex workers have constantly made various demands in court for being released from confinement based on false charges of disease, unnecessarily prolonged confinement and for claiming rights to separate spaces in the cities to practice their trade. There are also petitions filed by 'civilians' complaining against a sex worker who might be living in their area.
These entries dwindle in the late 1920s - either due to an actual lessening in the number of petitions filed because of the provincial acts becoming established or it could that there was a lesser acknowledgement of these petitions in court, with more ground-level negotiations. And then there is always the possibility of biased archiving, which could have left filed petitions unrecorded.
From the 1990s onwards, organizations and campaign groups in various parts of India - such as SANGRAM and VAMP in Maharashtra, Durbar Mahila Samanvay Committee in Kolkata, the Sex Workers Union in Thiruvananthapuram and the New Delhi-based National Network of Sex Workers, among others - have articulated their demands. They have created their own means of assuring basic civic rights, such as right to life, accommodation, education, safety from police violence as well as unionization.
They also clearly dispel the popular usage of trafficking and sex work as being inextricably linked. They clarify that all those involved in sex work are not trafficked and that trafficking is not done only for purposes of sex work. They ask for acknowledgement of sex work as work, and also demand all the moral, ethical, social and legal conditions under which most other professions are practiced. It is not, in any sense, a unitary voice and there are many differences.
While the ITPA and its implications have always been discussed amongst sex workers' organization and among those working with sex workers, the March 8 protest was the first visible conglomeration of sex workers against the Act. This comes with the history of at least 15 years of local-level advocacy, development of basic infrastructure, political discussion and training, as well as a gradual evolving of campaign-based solidarity across differences.
Sex workers' struggles are proof that legal changes are only one aspect of social struggles. They are not central or primary.
In the true spirit of historical strength, lawmakers' voices are drowning even as the sex workers who arduously filed petitions a hundred years ago and the sex workers of today make their voices heard through political articulation and sheer presence.
An ironic vignette: property-based franchise in British India of the 1930s made sex workers the only group of women who could vote, as other women did not have the right to property at that time. History whispers to us yet again that there is not, and never will be, one story and all those who are silenced today can look back into the past for strength as we create our present.
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