One cannot speak of the history of queer pride in India without acknowledging the critical role that sex worker coalitions have played in the queer movements. In fact, in the mid 2000s, when the phenomenon of the pride walk was emerging in India, female and transgender sex workers were among the most visible groups of people supporting it.
In the 2004 edition of the ‘Kolkata Rainbow Pride Walk’, Durbar Mahila Samanwaya Committee were prominent participants in the march. Even in more recent times, since 2011, the ‘Bangalore Namma Pride March’ has been organized by a collective called the Coalition for Sex Workers and Sexuality Minority Rights.
Despite this shared history of resistance, the predominantly visible discourse regarding the queer movements today rarely acknowledges sex workers’ issues. This despite the fact that the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021, which awaits parliamentary approval, raises critical concerns about the rights of sex workers, and has been vehemently protested by sex worker coalitions as well as survivors of trafficking across the country.
As we step into pride month this year, it’s critical for us to recognise that there’s no pride without sex workers, and the fight for the dignity of sex workers is intrinsic to our collective liberation.
Supreme Court order on sex workers
In 2011, the Supreme Court of India passed an order in the matter of Budhadev Karmaskar Vs. The State of West Bengal and Others, which led to the constitution of a panel for sex workers with the following terms of reference: (1) Prevention of trafficking; (2) Rehabilitation of sex workers who wish to leave sex work; and (3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity in accordance with the provisions of Article 21 of the Constitution of India.
The panel submitted its final set of recommendations on the three terms of reference in 2016. The Government of India in response conveyed to the Supreme Court that it would come up with a draft legislation incorporating the recommendations of the panel. However, despite the passage of six years, the legislation didn’t see the light of day. Noting the failure of the government to come up with appropriate legislation, the Supreme Court, on May 25, 2022, directed the state governments and Union Territories to comply with the set of recommendations of the panel pertaining to conditions conducive for sex workers who wish to continue working as sex workers with dignity.
The court did so in exercise of its powers under Article 142 of the Constitution, which empowers the Supreme Court to issue binding directions which have force of law, till the State passes appropriate legislation in that field.
While sex work is not criminalised in India, legislations such as the Immoral Traffic (Prevention) Act, 1956 (ITPA) are often weaponised against sex workers, irrespective of whether they are in sex work voluntarily or not. Rampant police violence and denial of recourse to legal remedies in the event of sexual assault are also the stark reality for those engaged in sex work. The directions issued by the Supreme Court serve as a critical first step in ensuring the constitutional right of a dignified life for sex workers and in providing safeguards against the systematic violence that they are subject to at the hands of law enforcement officials and the law.
The State has been directed to ensure that when a sex worker is an adult and is participating in sex work with consent, the police must refrain from interfering and taking criminal action against them. It further requires the police to treat sex workers with dignity, as entitled to equal protection of the law, and ensure that in the event they come forward with complaints of sexual assault, appropriate legal action be taken, and they be provided with all the facilities that are available to survivors of sexual assault.
The court further directs that sex workers shouldn’t be arrested or harrassed during brothel raids, the measures deployed by them for their own safety and health shouldn’t be construed as an offence or as evidence of commission of an offence, and cases of adult sex workers detained in protective homes under the ITPA against their will must be reviewed and they must be released in a timely manner.
What is particularly crucial about these directions is that they recognise the right of sex workers to be involved as equal participants in the design of processes, policies and laws that directly affect them. The central government and state governments are mandated to involve sex workers and their representatives in the framing of laws, programmes and polices relating to sex work, either by ensuring that they are members of decision-making authorities and panels, and / or by ensuring that their views are included in decisions affecting them.
By shifting the legal response from one that focuses on criminalisation and compulsory rehabilitation (an approach that has been criticised by sex worker coalitions) to one that recognises sex workers as possessing agency, as authors of their lives, the Supreme Court has radically reframed the policy approach to sex workers’ issues. While we’re yet to witness how these directions will be implemented by the State, they’re certainly a necessary step in the right direction.
There are no single-issue struggles
As we usher in the pride month this year, at a time of unprecedented attack on human rights (often accompanied by a lukewarm judicial response to the same), it’s pivotal for us to recognise that the fight for queer liberation is closely linked to larger struggles for dignity and autonomy for all. The Supreme Court’s recent order is a landmark victory for sex workers, one borne out of decades of resistance and mobilising by sex workers around the country. At the same time, legislations such as the anti-trafficking Bill and a general climate of disregard for human rights, is one that must concern all of us.
Sex workers and queer persons (including those engaged in sex work) have both been historically marginalised on account of their non-normative lives – lives that disregard dominant social mores that govern acceptable and non-acceptable ways of being and living. The outcome of such marginalisation – be it criminalisation, institutional and societal violence, vulnerability to health concerns, and the denial of fundamental rights to equality, dignity and liberty – shape their everyday lives.
It’s in this context that we must acknowledge our shared past of resistance and struggle, recognise our collective futures, and prioritise strengthening alliances across and within movements.
The first version of the anti-trafficking Bill was the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. The Bill can be accessed here.
About the main photo: Members of the Kolkata-based Durbar Mahila Samanwaya Committee participating in the third edition of ‘Kolkata Rainbow Pride Walk’ held in 2004. Photograph courtesy: SAATHII