In ancient India, sex and sexuality were not the taboo subjects they are today. Evidence of this is seen in the explicit portrayal of sexual intercourse on the walls of some Hindu temples. The references to sex workers held in high esteem in the epics of Ramayana and Mahabharata show the status and dignity they had in those days. Their role as entertainers and relaxation artists was well recognized and accepted. The Victorian morality introduced by the British portrayed sex work as a sin and relegated sex and sexuality to the darkness of bed rooms. After independence, the British law was adapted without much modification and subsequent laws, including the Immoral Trafficking Prevention Act (ITPA) and section 377 of the Indian Code of Criminal Procedure, outlawed homosexual behaviour and regulate prostitution.
Nowadays, sex workers are exploited, harassed, physically beaten and otherwise abused by the police, gangsters and moralists in society simply because of their status as sex workers. Known sex workers are marginalized in the health system and frequently receive inadequate medical care. There is little attention for their specific health needs, especially regarding their sexual health, and physical and mental traumas due to violence. Sex workers are legally marginalized by a system which has in essence criminalized prostitution. Those who engage in sex work often find themselves entangled in a debt trap: they are fined for carrying out their work, but the only way they can access money to pay off fines is through more sex work. They have no legal and political rights, making it impossible to make a legal case for physical or sexual violence experienced while at work.
In India as well as elsewhere, trafficking of women and children for prostitution is a hot topic. Trafficking, defined by PATH as “using force, coercion, or deception to transport people across or within borders for purposes of forced labor”, is clearly a human rights violation. Many projects try to prevent trafficking or offer shelter to those who are rescued. The Immoral Trafficking Prevention Act is the main law dealing with trafficking and sex work in India. It does not criminalize prostitution in itself but punishes activities by third parties facilitating prostitution, such as brothel keeping, living off earnings, and procuring services. One of its main flaws is that it does not distinguish between coerced prostitution and consensual sex work.
Because of this lack of distinction in the law, sex workers are penalized repeatedly. For this, sections 7 (soliciting in public places) and 8 (sexual activity in public places) of ITPA are used. Originally, the purpose of the Act was to punish the traffickers and protect women from abuse. From this perspective, it is unthinkable that women solicit for themselves, even though this practice is highly visible on the streets. To solve this ‘contradiction’, the women are labelled as criminals and put into prison. A study commissioned by the National Human Rights Commission (NHRC) revealed that even trafficked women and girls who are rescued from brothels are charged with soliciting for prostitution. The report concludes: “it is disturbing to note that out of almost 14,000 persons arrested every year under ITPA, approximately 90 per cent are women, despite the fact that the majority of exploiters and abusers, including traffickers, clients, etc., are men.”1
The lack of clarity resulting from the failure to distinguish between forced and consensual sex work does not prevent women from being trafficked and facilitates the punishment and harassment of those who have not been coerced into sex work. The ITPA provides a wide range of powers to law enforcement agencies, thus effectively criminalizing sex work. According to an article in Positive Dialogue, newsletter of the Lawyers Collective in Mumbai, “the powers provided to the police have been misused and manipulated in such a manner that the law itself is an instrument of oppression. Arbitrary police raids, seizure of money and material belongings, physical assault, torture and rape by police personnel are common experiences of sex workers. This fear of violence coupled with the stigma attached to sex work practically isolates sex workers from the rest of society.”2
In the South Indian state of Kerala, there are about 10,000 street-based sex workers, almost half of them are male sex workers (mainly feminised males, kothis, providing sexual services to men). The first HIV/AIDS interventions among population groups with high-risk behaviour in the State started in the second half of the 1990s. Presently, there are more than 50 projects in Kerala that target marginalized populations. All of them are funded and controlled by the State AIDS Control Society, an arm of the government’s Health Department. The Sex Workers Forum Kerala (SWFK) is an informal network of sex workers in Kerala State. Interviews with sex workers conducted by SWFK showed that these programmes have inadequately addressed the laws criminalizing sex work, stigma attached to sex work and human rights violations by both the public and police.
It is very difficult for HIV prevention projects to work effectively in a criminalized atmosphere. In the case of Kerala, co-ordination between the law-making and implementing authorities and the Health Department never materialized, producing frustrating results. For instance, a peer education programme initiated by SWFK and sponsored by the Health Department continuously faced threats that peer educators would be arrested for soliciting for prostitution.
There are no red-light areas or permanent brothels in Kerala. There used to be drop-in centres funded by the government, which offered opportunities for organizing sex workers. However, after protests from the community, the government withdrew its financial support and this component vanished from the existing government-funded projects. Finally, there is no powerful organization of sex workers in Kerala similar to the Durbar Mahila Samanwaya Committee (DMSC) in the red-light district of Sonagachi, Kolkotta (see Box) and this prevents collective bargaining for condom use with clients.