On the Fundamental Rights of the Sex Workers and Others in India

7/31/2019 On the Fundamental Rights of the Sex Workers and Others in India

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On the Fundamental Rights of the Sex Workers and Others in India

Pradip Baksi

BACKGROUND

It is for about one and a half decades now that our Sex Workers are raising the

issues related to their lack of professional, legal and social rights before the

members of the Other Sections of our society. Throughout this period, they are

trying to get governmental recognition for their legal, civil and social rights, as

people who have voluntarily chosen to be engaged as workers in the sector of

sexual services. They belong to a profession which is about 10, 000 year old, in the

least. One often hears from the supporters, activists and leaders of our Sex

Workers Rights Movement that they wish to live with equal rights just like the

Other People of the society. They wish to be treated as equals of the Other

professionals and workers in the eyes of the law. Such desires are very natural

and just. A minimum of common sense, sensitivity and human empathy is enough

for understanding their desires for equality and justice. It is only our partially

western and partially Indian evil policy oriented government, its police,

administrative, and judicial bureaucracy and, their social guardians our

dominant patriarchal intelligentsia born, raised and submerged within a decadent

system of castism who fail to understand and appreciate the just demands of

the millions of our sex workers.

Our sex workers will have to go a long way to overcome the combined strength of

these forces of opposition. It is a path of learning through agitation, mobilization,

litigation and, education. We shall have to change the laws of our land and, do

something more than that. Time and again we shall have to prune, cleanse and

change our long cherished stereotypical ideas about ourselves and about the rest

of the society. When the sex workers of our land demand Equal rights availableto the Other people of the society, then it is assumed that the Fundamental

Rights enshrined in The Constitution of India [Part III: Articles 12-35] are indeed

Rights of Indians as human beings. Those who are born and raised among the

ruling castes of the land often do not even notice, that even today the hegemony

of their birth-related social rights happen to be far more powerful than the


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constitutional and legal rights available to the rest of the population. The

powerful and the educated members of the ruling castes do not even feel the

need to verify the truth or falsity of the claims about our constitutional rights. At

the other end of the social spectrum, people like our sex workers, exiled to the

periphery of our society, bereft of all social rights are trying to stand up with

their heads held high, only by clinging to the hopes created by the dominant

rhetoric of our constitutional and legal rights.

Having been born to the privileges of ruling caste social rights, I was never even

bothered about the truth or falsity of the claims about the constitutional rights of

the Indians. I never even felt the need to look up the pages ofThe Constitution of

India. My acquaintance with DMSC gradually changed all

that. The first major jolt came in 2002. In that year DMSC organized a PeaceFestival. In course of that festival the then Sports Minister of West Bengal, late

Subhash Chakraborti hosted a dinner in honor of the sex workers who organized

the festival. There were some introductory ritual speeches too. One of the guest

speakers, the then Special Director of the Central Bureau of Investigations

, Kolkata Zone, said that he will be in the front ranks, in the

struggle of the sex workers for obtaining the Fundamental Rights enshrined inThe

Constitution of India. I was vexed. Our police still empowered by the colonial

Indian Penal Code of 1860,torment and torture our sex workers day in and day

out; and, here I hear a very high ranking official of that police force expressing his

desire to fight for securing the constitutional rights of our sex workers! I thought:

either the person was just speaking for the sake of form without meaning

anything or, there exists no real guarantee for basic human rights in The

Constitution of India. I decided to find out for myself. A second jolt arrived within

a few months.

On 28 March 2003 DMSC organized a workshop aimed at increasing the rightsawareness of its activists and leaders. In the process of preparation for that

workshop it was noticed that the sense of duty of the leaders of our sex workers

was comparatively more developed than their awareness of rights. To be frank

their awareness of their various rights was very much repressed, rather feeble. In

many cases it was found that they have no idea about their personal rights as sex
http://www.durbar.org/http://www.cbi.nic.in/http://www.cbi.nic.in/http://www.durbar.org/


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workers, women and human beings. That which they thought to be their right,

often turned out to be their duty. For instance, they considered their duty to look

after their young children and old parents to be their rights. The rights

awareness among the college/university educated employees of the sex sector

NGOs was similarly poor. Why the situation is so bad? Is it because of a long

preponderance of the ethos of communal landownership in India? Is it also

because of the corresponding long history of caste-cum-gender based

oppressions? Is it the case that in India only the male members of the ruling

castes are permitted to have some kind of rights awareness? Is the governing elite

of India still implicitly guided by the dictums of The Kautiliya Arthasastra

[1|3.1.14-17; 4.16]that the maintenance ofVarnashrama Dharma bythe use of

Danda is the cardinal duty of the ruler? [In the context of military strategic

relevance of this text for India today, see: Michael Liebig 2012.] The aspiring

architects of the future civil societies of India must find out their answers to these

questions.

FUNDAMANTAL RIGHTS

DMSC published a booklet on the occasion of the above indicated workshop. It

contained, among other things, some excerpts fromThe Constitution of India, Part

III: Fundamental Rights. Let us now consider what is there in that part of ourConstitution. There, under the heading ofRight to Freedom, it is written in Article

19 (1) (g) that: all citizens shall have the right to practise any profession, to carry

on any occupation, trade or business1. Sex work is a profession or occupation or

trade or business. In ancient India it was called Ganikavritti *Profession of the

Courtesan+. Some people engage in this profession full time; some others - part

time, over and above their main profession, to earn some extra money. Here, this

or that kind of sexual services are exchanged for some amount of money; hence it

is a trade or a business. Thus it may seem that the profession or occupation of thesex worker is approved by The Constitution of India. It may seem so, but it is not

the case; because, a little later in the same Article 19 (2) (6) it has been stated the

government can put reasonable restrictions on the rights conferred in 19 (1) (g)

on the basis of any existing law, in the interests of the general public2. That is

to say, the government and its bureaucrats can obstruct the transaction of, or


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close down, any business in accordance with their views of reason and public

interests, if they so desire. Our sex workers know from their daily experience,

how the police operates from behind the veils of existing laws of The Indian

Penal Code of 1860, conduct raids on some pretext or the other, terrorize and

extort money from the customers and, negotiate weekly or monthly quotas of

graft. What our Sex Workers and many Other Subjects of our land do not know is

this: that if the officers of the government so desire they can and do conduct such

raids against Others engaged in Other professions for collecting graft, staying

protected behind Article 19 (2) (6) indicated above. So much, for the present, on

the Fundamental Rights of Indians to practise any profession or occupation or

trade or business.

Now let us take a look at the other Rights to Freedom enshrined in ourConstitution. Sex Workers and Other subject people of India may think that even

if they do not have any right to follow a desirable and possible profession or

occupation here, then at least the fundamental human rights to live and to move

freely are permitted in our Constitution. This is also an incorrect notion. Article 21

of our Constitution states that: the government can kill [that is, terminate the

right to life] or arrest [that is, restrict the freedom of movement] of any person

according to the procedures established by the existing laws3. A large part of the

laws of The Indian Penal Code dates back to the year 1860; it is a code that was

enacted immediately after the suppression of The Great Indian Revolt of 1857-

1859. Our present rulers indulge in nothing but hypocrisy, when they declare us

to be Citizens of free India and, simultaneously oppress us as Subjects, according

to the laws enacted during the days of the British Raj. Article 22 of our

Constitution is about our right to get arrested and, about the rights of the

parliament, the government and its police to arrest us4. The experience of getting

arbitrarily arrested under any pretext is a common experience of our sex workers

and their customers. However, our Sex Workers and Other ordinary Subjects of

the land do not know that some Indians get spared of this common experience of

arbitrary detention, only on account of their social rights as members of the ruling

castes. In the extreme of cases, the parliament of our rulers and their Advisory

Boards decide who can be arbitrarily detained for a period of more than three


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a self-contradictory world; in politics we have adopted the principle of one person

one vote but, we will continue to violate this adopted principle in our socio-

economic life, due to the social and economic structures of our society [ibid: 52].

All Constitutions and all laws, in the main, reflect the perceived self-interests andprejudices of the ruling elite of a given space and time. Now some turmoil and

uncertainty has gripped our ruling castes. This is a good time to test the limits of

their legal and constitutional confusions by proposing some fundamental critiques

and alternative drafts.

References

The Constitution of India [amended up to the 1st of December 2007]; available at:

The Code of Criminal Procedure, 1973;

See:

The Indian Penal Code, 1860; available at:

The Kautiliya Arthasastra [4th Century B C E]: Text, Glossary, English translation,

Notes and, a Study in III parts by R.P.Kangle. Delhi: Motilal Banarsidass, Reprint

2000.

Michael Liebig [2012], Endogenous Politico-Cultural Resources: Kautilyas

Arthashastra and Indias Strategic Culture. Available at:

Subhash C. Kashyap [1998], Aamaader Sangbidhaan [Bengali translation ofOur

Constitution, 1994]. New Delhi: National Book Trust.
http://lawmin.nic.in/coi/coiason29july08.pdfhttp://en.wikipedia.org/wiki/Criminal_Procedure_Code,_1973_(India)http://trivandrum.gov.in/~trivandrum/pdf/act/THEINDIAN%20PENALCODE.pdfhttp://www.idsa.in/event/KautilyasArthashastraandIndiasStrategicCulturehttp://www.idsa.in/event/KautilyasArthashastraandIndiasStrategicCulturehttp://trivandrum.gov.in/~trivandrum/pdf/act/THEINDIAN%20PENALCODE.pdfhttp://en.wikipedia.org/wiki/Criminal_Procedure_Code,_1973_(India)http://lawmin.nic.in/coi/coiason29july08.pdf


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Notes

GENERAL REMARKS

In the endnotes that follow, the texts under sub-heading [A] of the Articles,

Clauses and, Sub-Clauses ofThe Constitution of India will be followed by their

synonymous transformed readings under sub-heading [B] given below. The texts

of the Articles, Clauses and Sub-Clauses of our Constitution [and those of many

other Constitutions] are often written as negative sentences and/or clauses. If

these sentences and/or clauses are transformed into the corresponding

synonymous affirmative sentences and/or clauses, then it becomes clear that

they constitute nothing but a shameful effort to pass off the rights of the

government and its officials as the rights of the people. It becomes clear then that

the Fundamental Rights of the Indians, enshrined in our Constitution are

nothing but their rights to remain unemployed without any occupation, to

remainin some government run prison, to get trafficked and/or, to get killed by

the government. The parliament and government of India, its police and other

bureaucracy sincerely help the Indians to gain and consolidate these Fundamental

Constitutional Rights in very many ways.

[A]

1,Article 19. Protection of certain rights regarding freedom of speech, etc. - (1) All

citizens shall have the right

* * * *

(g) to practice any profession, to carry on any occupation, trade or business.

2.Article 19. (2) (6): Nothing in the sub-clause (g) of the said clause shall affect the

operation of any existing law in so far as it imposes, or prevent the State* from

making any law imposing, in the interests of the general public, reasonable

restrictions on the exercise of the rights conferred by the said sub-clause, and, in

particular, nothing in the said sub-clause shall affect the operation of any existing

law in so far as it relates to, or prevent the State* from making any law relating

to, -


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(i) the professional or technical qualifications necessary for practicising any

profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State*, or by a corporation owned or controlled by the

State*, of any trade, business, industry or service, whether to exclusion, completeor partial, of citizens or otherwise.

*State: Article12. Definition. In this part, unless the context otherwise requires,

the State includes the Government and Parliament of India and the

Government and Legislature of each of the States [= Provinces] and all local or

other authorities within the territory of India or under the control of the

Government of India.

3. Article 21. Protection of life and personal liberty. No person shall be deprived

of his life or personal liberty except according to procedure established by law.

4.Article 22. Protection against arrest and detention in certain cases.

* * * *

(4) No law providing for preventive detention shall authorise the detention of a

person for a longer period than three months unless

(a) an Advisory Board consisting of persons who are, or have been, or are

qualified to be appointed as, Judges of a High Court has reported before the

expiration of the said period of three months that there is in its opinion sufficient

cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any

person beyond the maximum period prescribed by any law made by Parliament

under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by

Parliament under sub-clauses (a) and (b) of clause (7).

* * * *

(7) Parliament may by law prescribe


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(a) the circumstances under which, and the class or classes of cases in which, a

person may be detained for a period longer than three months under any law

providing for preventive detention without obtaining the opinion of an Advisory

Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases

be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-

clause (a) of clause (4).

5.Article 23. Prohibition of traffic in human beings and forced labour. - (1) Traffic

in human beings and begar [= unpaid work] and other similar forms of forced

labour are prohibited and any contravention of this provision shall be an offence

punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory

service for public purposes, and in imposing such service the State shall not make

any discrimination on grounds only of religion, race, caste or class or any of them.

[B]1-2.

The government and parliament of India and, the government and legislature

of each of the states/provinces and all local or other authorities/bureaucrats

within the territory of India or under the control of the government of India, on

the strength of The Indian Penal Code of 1860 or, by enacting any new law [such

as The Code of Criminal Procedure, 1973] and, according to their understanding

of reasonableness and of public interest, can restrict or cancel the right of any

Indian to practise any profession or occupation or trade or business.

3.Any Indian can be killed/deprived of life or, arrested/deprived of personal liberty

according to due procedure established by law, such as the Indian Penal Code of

1860.


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4.Any Indian can be preventively detained by the government, for any period of

time beyond three months, either with the support of government appointed

Advisory Boards composed of Judges of High Courts or similarly competent

persons or, even without such support, on the strength of some Act passed by the

parliament.

5.Traffic in human beings is solely a monopoly business of the government of

India; private competition is prohibited in this sector.

First published in Bengali: Bharater Jounakarmider O Anyader Moulik Adhikar

Prasange, Namaskar(Kolkata), 2005, Vol.7, No.1: 66-71. Revised English version

uploaded on 26 June 2012.

On the Fundamental Rights of the Sex Workers and Others in India

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