BEYOND THE ALLURES OF CRIMINALISATION: RETHINKING THE REGULATION OF SEX

WORK IN INDIA

ABSTRACT

This article explores the shifting trends in prostitution law and policy in the postcolonial
context of India. Indian law has since the 1950s criminalised several aspects of the
commercialisation of prostitution rather than the sale of sex for money per se. Of late
however, following international trends around human trafficking and the relatively
popular Swedish model, the Indian state has been keen to further criminalise the demand
for sexual services. The competing prerogative of HIV prevention has however
powerfully helped counter this trend towards increased criminalisation. The Indian sex
workers’ movement has also attempted to shift the policy terrain by reframing
prostitution as a form of livelihood, in other words, sex work. While the countervailing
logic of pandemic control has offered sex workers some respite, the article argues that
Indian sex workers’ intertwined claims to both recognition and redistribution, to draw on
Nancy Fraser, can only be realised by acknowledging the increasing disutility of the
policy vocabulary around sex work and reassessing the materiality of law in all its forms,
particularly its relationship to the political economy of sex markets.

KEY WORDS: INDIAN SEX WORKERS’ MOVEMENT, HIV, GOVERNMENTALITY,

TRAFFICKING, LEGAL MOBILISATION

DR. PRABHA KOTISWARAN

DICKSON POON SCHOOL OF LAW
KING’S COLLEGE LONDON
SOMERSET HOUSE (EAST WING)
STRAND WC2R 2LS

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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, 176-7) during a period, which some scholars label as
fostering a global sex panic (Weitzer 2006, Brennan 2008, 49). Nicholas Kristof, the
award-winning New York Times journalist conducted an undercover raid with the
International Justice Mission, an US abolitionist organisation, in a Kolkata red-light area
in 2011 (Kristof 2011a, 2011b) while Gloria Steinham called on Indian policymakers to
criminalise 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,
traveled 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 paper focuses on India for three
reasons. First, to illustrate how, developing countries like India offer a counterexample to
the contemporary international trend towards the increased criminalisation 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 criminalisation, where all aspects of sex work and actors, including,
sex workers, are criminalised. The second is complete decriminalisation 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 decriminalisation where all aspects of and players in sex work,
including customers, are criminalised but sex workers are not. Finally, we have
legalisation, 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 legalisation 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 generally
accord 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.

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 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. SITA faced constitutional
challenges by sex workers who claimed that it infringed on their right to profession but
by the mid1960s, courts upheld its underlying framework, which was to criminalise
commercialised 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. Although the ITPA does not criminalise the act of sexual intercourse for
consideration per se, it criminalises 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 criminalisation.

FROM COMPLETE CRIMINALISATION TO PARTIAL DECRIMINALISATION 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 (Menon 2007: 30; Sathyamala and Priya 2006; Centre for Women and
Development Studies & HIVOS 1993: 22–3; Sahni et al, 2008). 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 mid1990s, when the National Commission for
Women (NCW), a state body specialising on 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 criminalised sex workers, preferring instead to criminalise male
customers. The NCW’s position thus became the starting point for future governmental
policymaking 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 (Plan of Action 1998, 37). Neither the government
nor the NCW called for the decriminalisation of sex workers themselves but were
inclined to impose further penalties on other stakeholders.

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 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 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 Organisation (NACO) claimed that India’s
HIV epidemic was driven by sex worker-client interactions (NACO 2006, 19).
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 amongst 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 decriminalisation. Only the
UNAIDS and WHO advocated decriminalisation in the absence of victimisation (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). Although the UN Protocol
targeted trafficking into any form of labor, several countries initially targeted trafficking
for sex work or sexual exploitation. Trafficking for sex work further subsumed sex work
itself. The Swedish model of criminalising customers of sex workers while
decriminalising the sale of sexual services became particularly popular. About the same
time, the US 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 US 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 (2002 Amendment). It did not however propose to
criminalise 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 DWCD proposed the Immoral Traffic (Prevention)
Amendment Bill, 2006 (ITPA Amendment) to repeal sections heavily used against sex

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workers but also to stringently punish 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 criminalising 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 criminalise trafficking. Trafficking
typically involves the recruitment or harboring of persons through means of coercion for
the purpose of exploitation. Interestingly, the precursor to the CLA, the Criminal Law
(Amendment) Ordinance, 2013, criminalised the recruitment, harboring 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 acknowledgment by the Indian
state that sex work is not inherently exploitative and that voluntary sex work could be
cordoned off from involuntary sex work (Distinction between consensual sex work and
sexual exploitation welcomed, 2013). The special status of trafficking for sex work
however remains within the law as using victims trafficked for sexual exploitation is
criminalised, but not using those trafficked for exploitation in other labor 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 criminalising customers of sex workers (Chopra 2013), Indian
sex workers’ groups have for now, won a reprieve.

UNPACKING POLICY VOCABULARIES, RECONCEPTUALISING ANTI-SEX WORK LAWS

If one is to trace the trajectory of prostitution law reform in postcolonial India,

complete criminalisation 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 institutionalised 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 decriminalisation although
unequivocal support for the complete decriminalisation 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 decriminalisation, through the selective decriminalisation of sex
workers accompanied by a specific offence criminalising customers of sex workers.
Meanwhile, state actors such as the Ministry of Health and NACO largely reacted to the

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proposals of the Ministry for Women and Child Development by opposing the ITPA
Amendment rather than propose laws to more fully protect sex workers’ rights. 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 labor 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 criminalises
customers or Netherlands legalises 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 authorise a range of institutional
arrangements, shape subjectivities, spatialise markets and ultimately normativise existing
arrangements.

Scoular’s 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 (Scoular 2007, 765). 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
LGBT community and exotic dancers, and legitimised them as rights-bearing subjects.
This suggests a liberalisation 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
governmentalised state in the context of pandemic control that has prevented the
increased criminalisation of sex work as advocated by abolitionists. Feminists have
understandably questioned the emancipatory potential of HIV prevention efforts. Ghosh
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, 59). Ghosh claims that the exceptional nature
of the abjection and subservience involved in sex work prevents the sex worker from

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transcending her subalternity to realise her subject-citizen status (Ghosh 2005, 66). Yet
others argue that the unpredictable spillover effect of the HIV prevention agenda (Menon
2007, 6) into forms of radicalisation 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 mobilisation, but has also, rendered such organising sustainable,
by providing a foothold for demanding benefits of the governmentalised state. The
resultant governmental dissonance has helped ward off international pressures to further
criminalise sex work. In order to fully appreciate the contingent spaces for sex worker
mobilisation 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 criminalisation 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 does 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
stigmatised 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

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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 theorised. 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 decriminalisation or novel forms of legalisation would necessarily further
the interests of all sex workers. Even a radical sounding proposal termed ‘legalisation for
empowerment’ which emerged in India in the early 1990s and drew on labor law
principles (e.g. minimum wages) to comprehensively protect 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 realise major shifts in policy. I argue
that it does. Although the political impetus for a shift in policy towards complete
decriminalisation (at the very least) has to come from the mobilisation 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

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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’ MOBILISATION

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
theorise patterns of Indian sex workers’ mobilisation over the past twenty years. In
elaborating on their relationship with the law, the paper 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’ organisation, the Kolkata-based Durbar
Mahila Samanwaya Committee (DMSC) with a membership of 65,000 sex workers can
be characterised as a social movement (Kotiswaran 2014). Four distinct phases of Indian
sex workers’ mobilisation, including, of the DMSC can be tracked between 1992 and
2013. The paper 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’ organising. 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 organisation, and self-regulatory boards across the state of West
Bengal to prevent trafficking. It further organised 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.1 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 mobilisation. 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 authorise the raid of certain red-light areas
with a view to rehabilitating sex workers (Sen and Nair 2004, 225). DMSC and NNSW
on the other hand, have tended not to approach the courts even in the face of considerable
1
Unemployed men in the neighborhood who might also engage in running gambling, liquor and drug dens.

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state violence for fear of a poor judicial outcome. While refraining from engaging in
formal venues of state power such as courts, DMSC and NNSW have pursued an
alternate form of legal mobilisation. They have been highly active in petitioning
governmental actors like high-ranking police officers, ministers, the NCW and the
NHRC. They also constantly fashioned themselves according to governmental categories
such as ‘day labourers’, ‘people living below the poverty line,’ ‘the unorganised sector’2
instead of as ‘beggars/vagrants/street children’ or as ‘singers and dancers.’ For a highly
marginalised 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 urgently focus 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!” (id., 11). This shift in the legal consciousness of sex
workers produced a palpable change in DMSC’s appetite for litigation. Ultimately
although neither NNSW nor DMSC challenged the ITPA in court in a bid to mobilise
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 eighteen-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 mobilise public opinion against the ITPA.

2
An Indian term for the informal economy. 92% of India’s working population works in the informal
economy.

10

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 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’ mobilisation, the paper 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’ organisations disagree substantially on possibilities
for law reform reflecting the varied regional political economies of sex work and the
mobilisational narratives that they draw from. Even a group like the DMSC can occupy
varied dispositions to the law over an extended period of time. Social movement theory
and relevant theories of legal mobilisation 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 Labor 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
NNSW might refrain from resorting to the courts or other state venues.

BEYOND CRIMINALISATION; TOWARDS REDISTRIBUTION

In conclusion, India confirms to some extent the worldwide trend towards the
increased criminalisation 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 criminalise 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’

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movement must utilise this opportunity to return to the redistributive drawing board. Here
the work of Nancy Fraser is pertinent. In Justice Interruptus (1997), Fraser 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 criticise 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 the 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 seriously consider
rehabilitation, 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 15-16). Further, sex workers’ opposition to conventional legalisation
(Jameela 2007, 110) and preference for decriminalisation 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 realise 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 penalises trafficking. The second
possibility for reform arises from labor law reform at the regional level. This possibility
is closely linked to the nature of sex workers’ demands for workers’ rights, articulated

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not in terms of the right to profession but as an occupation/business (dhandha) (VAMP &
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 mobilising 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 licenses 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.

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