Beyond the allures of Criminalization: Rethinking the regulation of sex work in India

Introduction

The third world sex worker enslaved in a big-city brothel has captured the imagination of many a crusader in the contemporary battle against human trafficking for sex work or ‘modern slavery’. India figures prominently in this landscape of sexual humanitarianism (Mai, 2014: 176–177) during a period, which some scholars label as fostering a global sex panic (Brennan, 2008: 49; Weitzer, 2006). Nicholas Kristof (2011a, 2011b), the award-winning New York Times journalist conducted an undercover raid with the International Justice Mission, a US abolitionist organization, in a Kolkata red-light area in 2011 while Gloria Steinham called on Indian policy-makers to criminalize customers of sex workers. Indian activists actively participate in cultivating this imagery of Indian women’s victimhood and are key transnational players in their own right. In 2013, Sunita Krishnan, the founder of an abolitionist Indian NGO Prajwala, travelled to New York to receive a lifetime achievement award from the New York-based Diane von Furstenberg Foundation for her work against ‘sex trafficking’. This article offers an account of the complexities of Indian domestic policy around sex work as it has evolved over the past two decades not simply because it offers a backdrop against which western sexual humanitarianism plays out. Instead the article focuses on India for three reasons. First, to illustrate how developing countries like India offer a counter-example to the contemporary international trend towards the increased criminalization of sex work. Second, to complicate the existing policy vocabulary around sex work by drawing on socio-legal scholarship and research on sex work in India in order to offer a materialist understanding of the law. Third, to explore the multi-layered engagement of the Indian sex workers’ movement with the law as a way of refining expectations that sex workers’ groups elsewhere might develop of the legal system.

Postcolonial Legal Developments around Sex work

Before mapping the policy landscape on sex work in India today, clarifying the four regulatory positions that states typically adopt in relation to sex work is essential. The first is complete criminalization, where all aspects of sex work and actors, including, sex workers, are criminalized. The second is complete decriminalization where any special anti-sex work criminal law is repealed leaving sex work to be regulated by laws applicable to all citizens, including the general criminal law (e.g. a domestic criminal code). The third is partial decriminalization where all aspects of and players in sex work, including customers, are criminalized but sex workers are not. Finally, we have legalization, where the content of regulation could vary, but rules specifically dealing with sex work replace any anti-sex work criminal law (Halley et al., 2006: 338–339). Conventional legalization usually involves zoning, registration and the compulsory testing of sex workers for public health purposes. Needless to say, this typology is a way of broadly comparing the prostitution regimes of different countries. One can hardly attribute any internal coherence to them or assume that they are enforced to accord generally with their stated goals. Indeed later, the article will return to this typology to highlight its increased disutility and draw on socio-legal scholarship to set out the various axes along which these prostitution regimes need to be reconsidered.

Contemporary sex work in India bears traces of its colonial past. Indeed, historians have extensively documented the colonial state’s regulation of prostitution in the interests of empire (Ballhatchet, 1980; Nair, 1993; Parker, 1998; Raj, 1993; Tambe, 2009). The Indian anti-sex work criminal law, the Suppression of Immoral Traffic Act, 1956 (SITA) was passed soon after independence in 1956 (see Reddy, 2004). SITA faced constitutional challenges by sex workers who claimed that it infringed on their right to profession but by the mid-1960s, courts upheld its underlying framework, which was to criminalize commercialized sex rather than the sale of sex per se. SITA was amended in 1986 and renamed the Immoral Traffic Prevention Act, 1956 (ITPA) but mostly only enhanced certain penalties (see Reddy, 2004). Although the ITPA does not criminalize the act of sexual intercourse for consideration per se, it criminalizes all activities necessary in order to perform sex work such as soliciting, maintaining a brothel, living off the earnings of prostitution, procuring a woman for the sake of prostitution and seduction of a person in custody (Reddy, 2004). The statute conflates trafficking with sex work. The ITPA thus embodies a policy of complete criminalization.

From Complete Criminalization to Partial Decriminalization and Back

Interestingly, the Indian women’s movement did not provide the impetus for any fundamental rethink of sex work policy in the 1980s and 1990s and has conceded as much (Centre for Women and Development Studies & HIVOS, 1993: 22–23; Menon, 2007: 30; Sahni et al., 2008; Sathyamala and Priya, 2006). The discovery of HIV in India in 1986 led to some attempts to rethink sex work policy, but the state’s orientation towards the issue shifted only from the mid-1990s, when the National Commission for Women (NCW), a state body specializing in gender issues was instituted. The NCW articulated a radical feminist view of sex work. Its reports claimed that the harms of sex work were irreparable and collapsed all forms of sex work, whether voluntary or not into sexual servitude and slavery. In particular, it assumed that Indian sex workers are highly unlikely to have willingly consented to performing sex work, given their background conditions of poverty. Finally, the NCW refused to distinguish between child prostitution and adult prostitution and between sex work and trafficking for sex work. The NCW also highlighted the state’s discriminatory enforcement of the ITPA, calling to amend the ITPA where it criminalized sex workers, preferring instead to criminalize male customers. The NCW’s position thus became the starting point for future governmental policy making on the issue. As the ITPA was left untouched however, Supreme Court lawyers and academics undertook public interest litigation (PIL) to address the appalling conditions in protective homes set up under the ITPA. The Gaurav Jain case ((1997) 8 SCC 114) even resulted in the 1998 Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children (Plan of Action). The Plan mimicked the radical feminist speak of earlier NCW documents, while at the same time treating sex work as immoral and distinguishing between victims who were willing to be rehabilitated, and those who were not (Department of Women and Child Development, 1998: 37). Neither the government nor the NCW called for the decriminalization of sex workers themselves but were inclined to impose further penalties on other stakeholders.

Even as an abolitionist approach against sex work took root within certain governmental bodies, the Indian state had since the 1990s undertaken large-scale efforts against the spread of HIV by entering into public–private partnerships, with foreign donors, including multilateral institutions like UNAIDS, development agencies like USAID and the Department for International Development (DFID) and venture philanthropist initiatives like the Gates Foundation. With an estimated sex worker population of between 831,677 and 1,242,819 sex workers (NACO, 2006: 21), the National AIDS Control Organization (NACO, 2006: 19) claimed that India’s HIV epidemic was driven by sex worker–client interactions. Consequently, public health experts viewed sex workers not as deviants or victims but as ‘change agents’ who could negotiate safe sex with customers. However, support for sex workers was limited by a utilitarian calculus that permitted interventions among sex workers but only to the extent necessary to prevent the spread of HIV to the general population, including, heterosexual marital families. Thus, the NACO called for a rights-based approach to sex work without unequivocally calling for decriminalization. Only the UNAIDS and the World Health Organization (WHO) advocated decriminalization in the absence of victimization (Ahmad, 2001: 643; Rekart, 2005: 2129).

By 2000, international trends on sex work policy significantly shifted with the negotiation that year of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime (UN Protocol, 2001). Although the UN Protocol targeted trafficking into any form of labour, several countries initially targeted trafficking for sex work or sexual exploitation. Trafficking for sex work further subsumed sex work itself. The Swedish model of criminalizing customers of sex workers while decriminalizing the sale of sexual services became particularly popular. About the same time, the USA passed the Victims of Trafficking and Violence Protection Act, 2000 (VTVPA), which ranked countries according to their efforts to prevent, prosecute and punish trafficking. These rankings in the ascending order of performance were Tier 3, Tier 2 Watch List, Tier 2 and Tier 1. Countries that did not comply with a certain minimum standard for the elimination of trafficking fell within Tier 3 of the annual Trafficking in Persons Report (TIP Report) and risked the loss of non-humanitarian, non-trade-related foreign assistance (Halley et al., 2006: 363). Not surprisingly, countries that routinely fall in Tier 3 include foreign policy foes of the USA such as North Korea and Libya.

For the first three years (2001, 2002 and 2003) when the Trafficking in Persons Report was issued, India figured in Tier 2. In 2002, the federal-level Department for Women and Child Development proposed an amendment to the ITPA. It sought to repeal the soliciting section of the ITPA, used most commonly against sex workers, expand the definition of trafficking to mirror that in the UN Protocol and increase penalties against brothel keepers and traffickers (Amendment, 2002). It did not however propose to criminalize customers of sex workers. However, in 2004, India was demoted to the Tier 2 Watch List of the TIP Reports, where it remained until 2010 for failing to make ‘significant enough’ efforts to combat trafficking. In 2005, as an ostensible response to India’s TIP downgrade, the Department of Women and Child Development (DWCD) proposed the Immoral Traffic (Prevention) Amendment Bill, 2006 (ITPA Amendment) to repeal sections heavily used against sex workers but also to punish stringently for the first time, customers of sex workers. As the Bill made its way through Parliament, however, differences within the Union Cabinet of ministers began to emerge. The ministries of Home Affairs and Women and Child Development supported the Bill whereas the Health Ministry opposed it. Thus, the governmental dissonance (Chatterjee, 2006: 805), which had been building up over time meant that the ITPA Amendment ultimately lapsed in Parliament.

Most recently, in the wake of the gang rape and murder of a young woman in Delhi, the Indian Parliament passed the Criminal Law Amendment Act, 2013 (CLA) with several new provisions criminalizing violence against women. The negotiations leading up to the CLA once again displayed the inextricable relationship between sex work and the abolitionist rhetoric around trafficking. Given India’s ratification of the UN Protocol in 2011, it was not surprising that the CLA sought to criminalize trafficking. Trafficking typically involves the recruitment or harbouring of persons through means of coercion for the purpose of exploitation. Interestingly, the precursor to the CLA, the Criminal Law (Amendment) Ordinance, 2013, ¹ criminalized the recruitment, harbouring and transport of a person for purposes of prostitution thus viewing all forms of prostitution as exploitative per se. Indian sex workers’ groups immediately protested. Consequently, the CLA, which replaced the Ordinance, revised the definition of exploitation for purposes of the offence of trafficking to include ‘any act of physical exploitation or any form of sexual exploitation’. Sex workers’ groups celebrated this as an acknowledgement by the Indian state that sex work is not inherently exploitative and that voluntary sex work could be cordoned off from involuntary sex work (The Hindu, 2013). The special status of trafficking for sex work however remains within the law as using victims trafficked for sexual exploitation is criminalized, but not using those trafficked for exploitation in other labour sectors. This in addition to the fact that the term ‘sexual exploitation’ is not defined under the CLA suggests that the enforcement of these new trafficking provisions may well end up targeting only sex work. Even as the relevant ministry is thought to be contemplating an amendment to the ITPA criminalizing customers of sex workers (Chopra, 2013), Indian sex workers’ groups have for now, won a reprieve.

Unpacking Policy Vocabularies, Reconceptualizing Anti-Sex Work Laws

If one is to trace the trajectory of prostitution law reform in postcolonial India, complete criminalization in the form of the ITPA offers a starting point. The domestic strain of abolitionist thought around sex work was manifest ever since the 1990s, which in turn was institutionalized by state bodies such as the National Commission for Women and the National Human Rights Commission (Kotiswaran, 2011b). This effectively circumscribed possibilities for law reform to partial decriminalization although unequivocal support for the complete decriminalization of sex workers was far from forthcoming. The gathering momentum of international abolitionism promoted worldwide by the TIP Reports only tipped the scales slightly when the ITPA Amendment sought to pursue partial decriminalization, through the selective decriminalization of sex workers accompanied by a specific offence criminalizing customers of sex workers. Meanwhile, state actors such as the Ministry of Health and NACO largely reacted to the proposals of the Ministry for Women and Child Development by opposing the ITPA Amendment rather than propose laws to protect sex workers’ rights more fully. In the most recent round of criminal law reforms, leading to the passage of the Criminal Law (Amendment) Act, 2013, we find the decoupling of the link between sex work and trafficking. The state finally seems to acknowledge that persons can be trafficked into a range of labour sectors and not just sex work and that prostitution is not per se exploitative. Yet, for the time being, the ITPA remains on the books rendering the apparent reprieve won by Indian sex workers through the non-exceptionalist definition of trafficking, a potentially symbolic victory.

Indian sex workers’ success in fending off a Swedish style anti-sex work law however begs the more fundamental question as to the significance of the law for sex markets. Indeed, many scholars have identified the paradoxical similarity in the real life effects of the highly varied regulatory options (Bernstein, 2007; Scoular, 2010), of which the article offered a typology earlier. Thus, irrespective of whether Sweden criminalizes customers or the Netherlands legalizes sex work, the law’s ring-fencing of beneficiaries to citizens in these western countries results in the privileging of indoor sex work where sexual services can be safely consumed by the middle classes while rendering precarious, the highly visible street-based sex work performed by migrants. This has led some to wonder about law’s relevance in shaping sex markets (Agustín, 2008). Scoular (2010) has offered a much-needed critique of the position as to the law’s irrelevance by arguing against a sovereigntist notion of the law preferring instead to deploy a Foucauldian understanding of the law to demonstrate its ability to authorize a range of institutional arrangements, shape subjectivities, spatialize markets and ultimately normativize existing arrangements.

Scoular and O’Neill’s (2007: 765) argument to consider sex work policy in the context of new forms of neo-liberal governmentality and the resultant bifurcated strategy that offers the promise of ‘social inclusion to those who responsibly exit and “resume” normal lifestyles and continued exclusion to those who remain involved in street sex work, and who are constructed and reproduced in law as anti-social’ is persuasive. Her argument even bears resonance in the Indian context. For example, there have been a few limited occasions when Indian courts have upheld the rights of sexual minorities like the lesbian, gay, bisexual and transgender (LGBT) community and exotic dancers, and legitimized them as rights-bearing subjects. This suggests a liberalization of sexual mores, attributable to major socio-economic shifts in the wake of neo-liberal economic reforms in India and the articulation of legal norms as to what permissible sex (e.g. sex in private) is. However, the trajectory of neo-liberal governmentality in the postcolonial context is quite different. As the article has shown, it is sex workers’ very status as a high-risk population group targeted by the governmentalized state in the context of pandemic control that has prevented the increased criminalization of sex work as advocated by abolitionists. Feminists have understandably questioned the emancipatory potential of HIV prevention efforts. Ghosh (2005: 59) for instance has argued that HIV prevention has transformed sex workers into a target of welfare through knowledge formation and surveillance, particularly through what she calls the care-watch system. Ghosh (2005: 66) claims that the exceptional nature of the abjection and subservience involved in sex work prevents the sex worker from transcending her subalternity to realize her subject-citizen status. Yet others argue that the unpredictable spill-over effect of the HIV prevention agenda (Menon, 2007: 6) into forms of radicalization is hard to ignore. HIV prevention despite its circumscribed regard for sex workers’ rights has not only provided the impetus and resources for sex worker mobilization, but has also, rendered such organizing sustainable, by providing a foothold for demanding benefits of the governmentalized state. The resultant governmental dissonance has helped ward off international pressures to criminalize sex work further. In order to appreciate fully the contingent spaces for sex worker mobilization that governmentality has made possible, a renewed understanding of the materiality of the law and of sex markets is essential.

At the very outset, a more nuanced account of the universe of criminal law is essential when we discuss sex work policy. As has been argued elsewhere, abolitionists have an exaggerated faith in the power of the criminal law (Halley et al., 2006). The call for increased criminalization is based on the assumption that the state is not protecting women all the time but somehow that if the state could only find the political will, it could manage to do so. This is where Duncan Kennedy’s concept of the tolerated residuum of abuse helps clarify the role of anti-sex work criminal laws such as the ITPA. It can particularly help us go beyond the self-defeating discourse of the enforcement ‘gap’ between the law in the books and law in action. Writing in the context of rape laws, Kennedy has proposed that the legal system will always tolerate a certain level of sexual abuse, which he terms as the tolerated residuum of abuse. This tolerated residuum of abuse depends on contestable social decisions about what abuse is and how important it is to prevent it. This in turn affects practices of abuse and social practices of both men and women, irrespective of whether they themselves are abusers or victims (Kennedy, 1993: 137). At times, the law may even generate violence against women as in the case of anti-sex work laws like the ITPA. Indeed, the ITPA is used excessively to prosecute sex workers rather than other stakeholders in the sex industry. The Indian state however also uses a range of provisions under the Indian Penal Code, 1860 (e.g. relating to obscenity), local government laws and specialist anti-narcotics laws to harass sex workers. Since the crime statistics data do not record the extent of the use of these laws against sex workers, much less, the countless threats to invoke them against sex workers or the bribes obtained to hold off prosecution; the tolerated residuum of abuse against sex workers is in fact likely to be quite large. Shifts in this tolerated residuum of abuse are possible such as when the senior ranks of the police bureaucracy are persuaded by feminists that sex workers are victims of patriarchal abuse but these shifts have not been significant to date. While a large tolerated residuum of abuse could be attributed to the size of the Indian sex industry and the violence of the postcolonial state against sexual minorities, the stigmatized nature of sex work the world over suggests that the idea of the tolerated residuum of abuse could be productively deployed elsewhere to temper feminist expectations of the law.

Significantly, research on sex work policy does not often address the relationship between a given anti-sex work criminal law and the range of other laws that might regulate sex work. This gap becomes particularly acute when we consider the range of institutional settings in which sex work is carried out and the fact that sex work can often be a short-term occupation. Sex work research has always been highly attuned to such differences so it is surprising that the role of the law in these varied contexts of sex markets has not been adequately theorized. In the Indian context, the institutional settings for sex work include the street, the brothel, the household and the hospitality sector with sex workers moving fluidly between them. The political economies of sex work in these settings are varied, as are the regulatory impulses of the state towards them. There are significant regional variations as well. Red-light areas are common in North India but are relatively rare in South India, which makes the viability of a nationwide anti-sex work criminal law questionable to begin with. A legal realist approach which is attuned to background legal rules as well as the distributional consequences of any rule change on differently endowed stakeholders (Kennedy, 1993) can help offer a complex account of the law in sex markets. Deploying such a legal realist approach towards the institutional setting of the brothel, I have elsewhere demonstrated the complex interaction between the ITPA and a range of other legal rules, including civil law, as well as informal social norms and market structures (Kotiswaran, 2008). Thus a legal ethnography of Sonagachi, Kolkata’s largest red-light area revealed that rent-control laws more powerfully shaped sex workers’ stakes in the political economy of the red-light area than even the ITPA.

Further, the sheer heterogeneity of sex markets like Sonagachi and the complex legal landscape that stakeholders inhabit means that their interests, including of sex workers themselves, rarely align with each other. Against this backdrop, any proposed formal rule change is highly likely to produce a range of unintended economic consequences both positive and negative for different sets of sex workers even within the same sex market. Assessing the likely economic consequences of various regulatory proposals on a complex sex market like Sonagachi (Kotiswaran, 2011a), it is not clear that complete decriminalization or novel forms of legalization would necessarily further the interests of all sex workers. Even a radical sounding proposal termed ‘legalization for empowerment’ which emerged in India in the early 1990s and drew on labour law principles (e.g. minimum wages) to protect comprehensively the rights of sex workers actually seemed capable of producing quite disparate effects on varied sets of sex workers in Sonagachi. If anything, irrespective of the regulatory proposal at hand, landlords of brothels seemed to benefit the most from shifts in rule changes.

Socio-legal insights into the materiality of the law powerfully illuminate the law’s micro-effects on markets in sex work. Yet one might query whether delineating the bargaining endowments of stakeholders in the sex industry and mapping their likely shifts in light of regulatory changes can ultimately help realize major shifts in policy. I argue that it does. Although the political impetus for a shift in policy towards complete decriminalization (at the very least) has to come from the mobilization of sex workers, the form that law reform should take must necessarily take into account the unintended consequences of any regulatory proposal. This anticipation of unintended consequences is a necessary step towards a more robust theory of redistribution within sex work. Yet, economists have only relatively recently turned to studying sex work. Similarly, feminist disappointment over the implications of apparently far-reaching reforms in countries like Germany and the Netherlands could have been precluded by feminist economic analyses informed by a legal ethnography of sex work. Let me now turn to the collective agency of Indian sex workers, their interactions with the Indian legal system and their prospects for producing a substantial shift in policy on sex work.

Indian Sex Workers’ Mobilization

One of the unique aspects of the sex work debates in India is the presence of a strong sex worker voice. Social movement theory is a useful lens through which to theorize patterns of Indian sex workers’ mobilization over the past 20 years. In elaborating on their relationship with the law, the article considers varied institutional sites for such negotiation, including, that of the legislature and the courts at the federal and state levels. At least one Indian sex workers’ organization, the Kolkata-based Durbar Mahila Samanwaya Committee (DMSC) with a membership of 65,000 sex workers can be characterized as a social movement (Kotiswaran, 2014). Four distinct phases of Indian sex workers’ mobilization, including, of DMSC can be tracked between 1992 and 2013. The article briefly highlights the significance of these phases. In the early years, particularly, between 1992 and 1997, public–private partnerships for HIV prevention provided the impetus for sex workers’ organizing. Sex workers leveraged these resources while transcending the often-restrictive public health imperatives of HIV prevention projects. DSMC emerged from one such initiative in 1992. Within months, DMSC took to improving the living and working conditions of sex workers and their families and eventually set up health clinics, a credit cooperative, schools for sex workers and their children, a cultural organization and self-regulatory boards across the state of West Bengal to prevent trafficking. It further organized several protest marches against police and third-party violence as well as against societal discrimination. DMSC also intensely lobbied political parties and invoked the vocabulary of workers’ rights for staking sex workers’ intertwined claims to both recognition and redistribution, which resonated in a state run by leftist political parties.

By 1999, DMSC consolidated its advocacy efforts at the national level when along with other NGOs working with sex workers it instituted the National Network of Sex Workers (NNSW). The NNSW was circumspect about the role of the law in its work; the law was neither omnipotent nor irrelevant but simply ineffective in addressing its members’ most pressing concerns, namely, social stigma and harassment by police and local goons. ² At a workshop in 2004 a DMSC spokesperson coined the phrase ‘shield not sword’ to express how sex workers viewed the law. Sex workers’ limited faith in the ideology of rights explains two distinct aspects of their legal mobilization. The first is the ‘litigative paradox’, namely, sex workers’ reluctance to litigate in contrast to other stakeholders, particularly abolitionist NGOs. Sensing the willingness of courts to prod the executive into formulating policy on sex work (e.g. the Plan of Action), abolitionist NGOs have since the late 1990s, proactively filed public interest petitions to oppose the trafficking of women and girls and their inadequate rehabilitation. Indian courts, particularly, the Delhi and Mumbai High Courts have been receptive to such lawsuits often partnering with NGOs and the police to authorize the raid of certain red-light areas with a view to rehabilitating sex workers (Sen and Nair, 2004: 225). DMSC and the NNSW on the other hand, have tended not to approach the courts even in the face of considerable state violence for fear of a poor judicial outcome. While refraining from engaging in formal venues of state power such as courts, DMSC and the NNSW have pursued an alternative form of legal mobilization. They have been highly active in petitioning governmental actors like high-ranking police officers, ministers, the NCW and the National Human Rights Commission (NHRC). They also constantly fashioned themselves according to governmental categories such as ‘day labourers’, ‘people living below the poverty line’, ‘the unorganized sector’ ³ instead of as ‘beggars/vagrants/street children’ or as ‘singers and dancers’. For a highly marginalized group like sex workers, the state appears to respond better to such claims for benefits rather than to radical demands for workers’ rights. To illustrate, the 1998 Plan of Action offered sex workers tangible material benefits, such as free health care, education and preferential allotment of sites and housing but only as members of ‘economically weaker sections’ of society.

From 2005 onwards, the imminence of the amendment to the Immoral Traffic Prevention Act, 1986 seeking to adopt the Swedish model meant that the Indian sex workers’ movement had to focus urgently on countering the amendment itself. Interestingly, this sharpened sex workers’ oppositional instincts against the ITPA, which was repeatedly evident in protest rallies all over the country and in a march to the Indian Parliament itself. DMSC no longer viewed the law as a resource to be used defensively should the occasion arise. Law was the very source of violence. At a meeting in Delhi in 2011 where sex workers interacted with members of parliament, Sapna Gayen, a sex worker leader from DMSC stated in categorical terms: ‘This law is taking away all our rights as citizens of this country, The ITPA must go’ (Sex workers meet law makers, 2011: 8). Such sentiments were not confined to DMSC either. Veena, a sex worker from the South Indian Karnataka Sex Workers’ Union claimed: ‘the ITPA must, without question, go. It is the responsibility of the government to take care of our needs and rights, as we are its citizens too!’ (Sex workers meet law makers, 2011: 11). This shift in the legal consciousness of sex workers produced a palpable change in DMSC’s appetite for litigation. Ultimately although neither the NNSW nor DMSC challenged the ITPA in court in a bid to mobilize public opinion against the ITPA Amendment, their inability to use the law as ‘sword’ was largely due to the lack of necessary legal resources.

With the lapse of the ITPA Amendment, Indian sex workers’ groups reconsidered their legal options. When resisting the Amendment, sex workers’ groups learnt that many members of Parliament were sympathetic to their cause but were unwilling to initiate law reform without a fundamental shift in public opinion. Detecting a shift in public mood during the agitations, in 2009, the 18-member strong NNSW registered itself as the Indian Network of Sex Workers (INSW) and declared its intention to contest various sections of the ITPA in different High Courts (Sengupta, 2009). In August 2010, DMSC filed a public interest petition in the Kolkata High Court challenging the constitutionality of sections 4, 8 and 18 of the ITPA dealing with living off the earnings of prostitution, soliciting and the closure of brothels, respectively. Although litigation remains resource intensive and funds for it scarce, DMSC now felt confident about converting a negative judicial outcome into an opportunity to mobilize public opinion against the ITPA.

Interestingly, DMSC has had occasion to interact with the judicial system when the Supreme Court in the wake of a sex worker’s murder (Budhadev Karmaskar v. State of West Bengal MANU/SC/0115/2011) appointed an advisory panel to assist central and state governments in preparing rehabilitation schemes for sex workers. DMSC represents sex workers on this panel and has so far interrogated the feasibility of rehabilitation instead of opposing it. With its input, the panel clarified that rehabilitation should be voluntary and unconditional and not limited to trafficked victims. Yet, the government has firmly opposed the panel’s recommendations for improving the lives of those wanting to continue in sex work. Thus, a sex workers’ group like DMSC, with its new-found respectability is navigating at the highest Indian court the deeply political question of whether sex work can ever be legitimate work. In 2013 these skills were put to the test when the precursor to the Criminal Law (Amendment) Act, 2013 proposed to conflate trafficking with voluntary prostitution. The Indian Network of Sex Workers in this instance coordinated with lawyers from the Indian women’s movement, an established social movement to defeat this provision. Their success in doing so is testament to the network’s growing influence.

In mapping Indian sex workers’ mobilization, the article has shown how sex workers’ groups inhabit varied levels of legal consciousness. In other words, the notion that sex workers have an oppositional legal consciousness towards the legal system is simplistic. Thus, Indian sex workers’ organizations disagree substantially on possibilities for law reform reflecting the varied regional political economies of sex work and the mobilizational narratives that they draw from. Even a group like DMSC can occupy varied dispositions to the law over an extended period of time. Social movement theory and relevant theories of legal mobilization can offer insights into the delicate interplay between the law’s treatment of sex work and the collective legal consciousness of sex workers so that the latter shapes and is shaped by constant interaction with state actors. A nuanced understanding of sex workers’ legal consciousness requires close study over time and in the multiple venues where the law manifests itself including, intuitive ones where the INSW might present a petition to the government of India over the ITPA, but also in the office of the Labour Commissioner, the local District Collector, in advisory committees constituted by courts and in sex workers’ own replication of state mechanisms such as DMSC’s self-regulatory boards. Similarly, moments of deciding to invoke the law say through litigation are as significant as legal ‘non-moments’ when the NNSW might refrain from resorting to the courts or other state venues.

Beyond Criminalization; towards Redistribution

In conclusion, India confirms to some extent the worldwide trend towards the increased criminalization of sex work and the use of the anti-trafficking agenda to target even voluntary sex work. However, the failed attempt of the Indian anti-sex work criminal law to criminalize demand due to the competing prerogative of pandemic control is instructive. It is only hoped that the contingent space created by the abeyance of more criminal law will be further mined to counter economic exploitation within the sex industry and strengthen sex workers’ rights. In other words, the Indian sex workers’ movement must utilize this opportunity to return to the redistributive drawing board. Here the work of Nancy Fraser is pertinent. In Justice Interruptus, Fraser (1997) claims that one of the predicaments of the postsocialist condition is the shift in claims made by social movements of the state. Where they earlier made claims for redistribution, they now assert a right to recognition. Characteristic of this shift is how group identity (such as sexuality) supplants class interest, how cultural domination supplants exploitation as the problem and how cultural recognition supplants socioeconomic redistribution. Further, remedies could be either affirmative or transformative. Affirmative remedies are those which do not disturb the underlying framework while transformative remedies restructure the underlying generative framework. Thus an affirmative remedy to a problem of recognition would seek to redress disrespect whereas a transformative remedy would engage in deconstruction.

Let us consider the demands of the Indian sex workers’ movement as viewed through Fraser’s scheme. There are those who criticize Indian sex workers’ groups for being merely interested in ‘equality claims’ against social discrimination and the repeal of the ITPA rather than with tackling class concerns and ameliorating exploitation (Ghosh, 2008: 63–65) within the sex industry. However, groups like DMSC make demands both for recognition (the removal of social stigma) and redistribution (workers’ rights). Further, these demands for both recognition (in a non-identitarian sense) and redistribution (in terms of workers’ rights rather than rehabilitation) are transformative. Thus, the trade union of DMSC, the Binodini Srameek Union has consistently referred to sex work as a marginal, sexist, exploitative and low-status job which was a rational choice from the very limited set of options available to poor, unskilled women in a capitalist and patriarchal society (NNSW, 2003). Most recently when a Member of Parliament addressed a gathering of sex workers, and urged them to consider rehabilitation seriously, one sex worker leader responded that sex workers did not want charity. They were citizens, who were entitled to earn their livelihood and that sex workers did not want to give up their work, but to do it with dignity and respect. Therefore, the fundamental issue should be what sex workers want to do, she said (Sex workers meet law makers, 2011: 15–16). Further, sex workers’ opposition to conventional legalization (Jameela, 2007: 110) and preference for decriminalization does not stem from a passion for individual freedom but from their daily experience of state brutality and disinclination towards increased governmental intervention in their lives.

The Indian sex workers’ movement might pursue two possibilities for reform in order to realize their demands. The first pertains to DMSC’s constitutional challenge to the ITPA, which although limited to certain key provisions of the ITPA will nonetheless chip away at it if successful. Here, the Canadian strategy of demonstrating, through social scientific evidence, the ill effects of an ambiguous anti-sex work law could prove invaluable. Moreover, despite the limited remit of DMSC’s writ petition currently pending before the Kolkata High Court, a significant rationale for the existence of the ITPA, namely, the prevention of trafficking into sex work is now satisfied by section 370 of the Criminal Law (Amendment) Act, 2013, which penalizes trafficking. The second possibility for reform arises from labour law reform at the regional level. This possibility is closely linked to the nature of sex workers’ demands for workers’ rights, articulated not in terms of the right to profession but as an occupation/business (dhandha) (VAMP and SANGRAM, 2007: 325). Specifically, sex workers view their work as being performed in the informal economy along with domestic workers, scavengers, street vendors, home workers and entertainment workers like bar dancers. In fact, DMSC has over the past four years been actively mobilizing domestic workers, construction workers, transport workers and those involved in embroidery work. The most progressive Indian laws relating to the informal workforce and which provide for a range of work-related benefits have come from provincial state legislatures rather than from the Indian Parliament. Indeed, several years ago, Kolkata’s Mayor was willing to issue licences but was held back by the ITPA, the federal-level criminal law. In the event that the ITPA is substantially reconfigured or repealed in the future, it is clear that sex workers’ groups will not be found wanting in proposing laws that have redistributive effects within the industry.