Gujarat High Court ruling opens doors to legal changes, recognise rights of voluntary sex workers
The Gujarat High Court in its latest judgment provided a caveat that in cases where sex work is voluntary Section 370 of the Indian Penal Code would not apply, thus opening the doors to make more sustainable changes in the legal arena for sex workers
Earlier this month, the Gujarat High Court made a commendable ruling that revolved around the vagaries of trafficking and sex work. It stated that clients of sex workers could be penalised under Section 370 (trafficking of persons) of the Indian Penal Code (IPC); however, the High Court provided a caveat that in cases where sex work is voluntary, Section 370 would not apply. The case, Vinod @ Vijay Bhagubhai Patel vs State of Gujarat (2017) is one where the judiciary looks at both the IPC as well as the Immoral Trafficking Prevention Act (ITPA), 1956, and examines the crime of trafficking.
The court led by Justice JB Pardiwala partially quashed the FIR against a person — who appeared to be the client or customer — that held that the prosecution of the applicant under the ITPA is not maintainable as it cannot be considered that he "procured" a woman for the purposes of prostitution. However, the court was reluctant to accept that a customer was not regarded as a perpetrator under Section 370 of the IPC. “I find it extremely difficult to take the view that a customer at a brothel is not covered within the provision of Section 370 of the Indian Penal Code. A customer at a brothel could be said to receive the victim. I see no good reason why the customer should be kept out of Section 370 of the Indian Penal Code.” The Court also urged the investigating officer to consider whether the sex workers in the present case were victims of exploitation, or were in sex work voluntarily, and stated that Section 370 would not apply to cases where the subjects of the litigation were engaged in sex work of their own volition.
The only legislation in India that directly deals with trafficking is the ITPA that punishes "sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind", and attempts to suppress the trafficking of minor girls and coerced women into sexual slavery and exploitation. The ITPA does not criminalise sex work per se, but prohibits prostitution in public spaces, and penalises the facilitation of prostitution such as maintaining a brothel, living off the earnings of a sex worker, and procuring and trafficking by third parties.
On the ground, the ITPA is ruthlessly implemented by the police and other law enforcement personnel to harass sex workers even though the purported legislation's intention was to protect trafficked women. Therefore, while it seems that India has not criminalised sex work, in reality, its labyrinth of laws around sex work is so complicated and amorphous that implementers have not been able to recognise the thin lines that divide a victim from a perpetrator. Moreover, time and again, the concept of trafficking, in India, has been conflated with sex work and this has resulted not only in the harassment of sex workers, but also kept a whole range of other types of trafficking (drug peddling, organ trade, trafficking of children for begging, child labour) from being covered within the purview of trafficking.
Prima facie, the present case is a very progressive ruling, especially in a country where the concept of sex work is legally blurred. Instead of criminalising the one who engages in sex work, the ruling suggests that clients who purchase sex must be brought under the purview of trafficking and punished. This part of the ruling is very reflective of the Nordic Model of sex work, wherein the sex workers are provided absolute immunity from criminalisation and are provided support to chart an exit strategy, while the act of buying individuals for sex is criminalised, thereby, reducing the demand that propels trafficking. In this attempt, the Gujarat High Court, notably, does not confuse the concepts of sex work and trafficking — a route that the judiciary often avoids. However, without a comprehensive legislation and systematic implementation, is such a model of punishing clients tenable, especially when India has not directly stated that sex work is immunised from criminalisation?
Another problem that this ruling brings forth is the differentiation between voluntary sex workers and those who were coerced into sex work. For this, the judgment talks of a clarification that the Justice Verma Committee issued to Meena Seshu on the rationale for the change in Section 370, as a part of the recommendations to amend laws regarding sexual violence against women — “The members of the committee wish to clarify that the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients. The committee hopes that law enforcement agencies will enforce the amended Section 370, IPC, in letter and in spirit.” In reading the clarification, what comes to mind is that Section 370 would be used to protect all women and children from being trafficked; the Verma Committee did not make the distinction between voluntary and coerced sex workers, as requiring the protection of the law, because the committee considered the root causes of resorting to sex work — poverty, squalor, lack of education and employment. Moreover, the use of the words “force” or “coercion” is a disputed element in defining trafficking for sexual exploitation. This has been evidenced in the recommendations by the United Nations Office on Drugs and Crime Model Law against Trafficking in Persons that “the seemingly 'voluntary offer' of a worker/victim may have been manipulated or was not based on an informed decision”.
It might be argued that targeting clients and customers and penalising the buying of sex might endanger the livelihood of sex workers. This rationale makes sense in a realm where sex work is explicitly legal and regularised and is conducted in a place where sex workers have the explicit "right to work". However, this is not the case in India. In India, sex workers are an invisible population who routinely face harassment and violence in public spaces.
The Gujarat High Court’s judgment has opened the doors to make more sustainable changes in the legal arena for sex workers. It would be futile to engage in conversations about consent and coercion, at this point. What the need of the hour is a legislation that ties the loose ends together in a way that sex workers have the option to exercise their right as citizens to invoke legal mechanisms for their benefit and protection, and also choose if need be, rehabilitation and integration into mainstream society.
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