(Ravi Singh Chhikara is an Advocate practicing in the Delhi High Court and District Court and Monal Chugh is an Advocate practicing in the Rajasthan High Court and District Court)
Featured Artwork: “Parallel Inversion” by Stevie Cisneros Hanley
Introduction
A bill, titled “The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021” is likely to be tabled in the monsoon session of the Parliament which aims to prevent trafficking in persons. However, one issue with the bill is that it includes the acts of consensual sexual services with the help of a third person within the ambit of sexual exploitation. Clause 25 of Section 2 of the said bill defines the sexual exploitation as an act of obtaining financial benefits through the involvement of another person in prostitution or other kind of sexual services. It takes within its ambit the situations where women themselves with their own consent join places like brothels to carry out the sex work. According to Section 23 of the Bill:
“Any person who: (a) Recruits, transports, transfers, harbors or receives another person; (b) By means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of authority or of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person;(c) For the purpose of exploitation of that person; shall be guilty of an offence of trafficking in persons and upon conviction shall be subject to imprisonment for a term which shall not be less than 7 years but which may extend to 10 years and shall also be liable to a fine which shall not be less than one lakh rupees but which may extend up to five lakh rupees.”
Thus, any person who recruits, or harbors etc. another person by means of abuse of a position of authority or of vulnerability for the purpose of exploitation of that personal shall be held guilty of trafficking in persons. It further provides that the exploitation shall include the sexual exploitation.
The provision does not take into account the fact that most of the women join this occupation due to abject poverty, lack of education and in dire need of financial help. These circumstances automatically make them vulnerable. Thus, calling a person who, in such circumstances provide her a living, an offender seems unjust and unreasonable. In a study it was found that 3/5th of the women joined this profession due to poverty or when they needed money to return it to creditors who gave money for the treatment of family members, buying a house, daughter’s marriage, etc. In these circumstances, if any person recruits or harbors such person for providing sexual services to other people shall be considered as an offender. Because in these circumstances, it would appear that the person has abused the position of vulnerability of a woman for the purpose of sexual exploitation. As the woman would be considered as a victim of trafficking, she would be forcefully rescued, detained, rehabilitated and separated from her family without the consent of the woman under Section 11(1) and Section 16(5) of the Act. In other words, the right to make living from the occupation of her own choice would be snatched from the sex workers.
Unconstitutionality Quo the Sex Workers
It infringes the right to bodily integrity, right to livelihood and right to freedom of occupation of sex workers who willingly want to carry sex work. At the same time, it raises a question that whether the time has come that we recognize the right to have sex of other people.
The Right to bodily integrity upholds the right of each human being to autonomy and self-determination over their own body. In the case of Aarushi Dhasmana v. Union of India, the Supreme Court of India expressly recognized the existence of right to bodily integrity under Article 21 of the Constitution of India.
Similarly, right to livelihood upholds the right of a person to have means of livelihood. The right to livelihood was recognized by the Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation in which the court observed that an equally important facet of the right to life is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. Thus, this right was given recognition under Article 21 of the Constitution.
Similarly, Article 19(1)(g) expressly grants the citizens the right to practice any profession, or to carry on any occupation, trade or business. Here, the word “occupation” means any regular work, profession, etc., in which an individual is engaged. In the case of Sodan Singh v New Delhi Municipal Committee, it was held that the object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a person may earn his livelihood. In a nutshell, the guarantee takes into its fold any activity carried on by a citizen of India to earn his living.
Undoubtedly, by virtue of Article 14, all these rights apply equally to sex workers. However, since no fundamental right is absolute, it can be reasonably restricted in accordance with the Constitution and the principles settled by the Supreme Court. Article 19(6) of the Constitution provides that legislature can put ‘reasonable restrictions’ on the right to freedom of occupation ‘in the interests of the general public’. In the case of Superintendent of Central Prison v Ram Mohar Lohia, the Supreme Court explained the meaning of ‘reasonable restrictions’ and held that they must not go in excess of the object. They must not be excessive or prohibitive. It was further held that in the case of Teri Oat Estates Pvt Ltd v U. T. Chandigarh that the restrictions should be the least restrictive of the choices. They must not go beyond what is necessary to achieve the object of the law under which they are sought to be imposed.
Thus, by virtue of Article 19(6) of the Constitution, the legislature is empowered to enact a law and put reasonable restrictions in the interests of the general public upon the right to bodily integrity, right to livelihood and right to occupation of sex workers. However, the restrictions should be reasonable and proportional and not prohibitive as held by the Supreme Court. However, the legislature here intends to prohibit the occupation to a great extent for the poor people who seek to make the sex work as their only source of money. The moment a woman engages a third person to help her in carrying out the services, it constitutes an offence. The bill does not take into account a fact that a poor woman might need help of a third person in power, generally a male member who finds it easy to find the customers, to procure the clients or a third person in power who can provide a safe and private place, far from her home where she can freely provide the sex services. Thus, a woman in dire need of financial help is completely prohibited from taking help of any person who could have provided her a living. Here, the state has acted as moral police and imposed its own sense of morality.
It could have been called ‘reasonable’ only if the government had put restrictions at the places where sex work could not be carried out or if it had itself specified places at which the sex workers could continue to carry their work with the permission of the Government. Further, it could have made provisions for the requirement of a license issued by Government before carrying the sex work. It could have provided the opportunity to know whether the woman was actually trafficked or she wants to carry the work of her own volition. This would have, at the same time, eradicated the problem of forceful prostitution. This is exactly what New Zealand enacted in its Prostitution Reform Act in 2003 which decriminalized the sex work. It allowed the authorities to make bylaws regulating the location of brothels, and the signage and advertising associated with commercial sexual services,
It is trite to say that every human being has the right to make informed decisions about his or her own body. The laws that govern sex work are laws that govern an individual’s right to make decisions about her own body. It needs to be recognized that not all sex workers are forced into sex work. Sometimes, even an individual can consciously decide to engage in sex work.
Infringement of Right to have sex – Unconstitutionality Qua the Citizens of India
It also leads us to question that whether it is high time that we recognize that every human being has a fundamental right to have sex. In the case of Navtej Singh Johar v. Union of India, while decriminalizing the act of consensual sex between same-sex persons, the Supreme Court held that right to sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity. In the case of Joseph Shine vs. Union of India, while striking down the offence of adultery from Indian Penal Code, the Court expressly supported the view of Siegel that a right to privacy safeguards an individual’s deeply personal choices which includes a recognition accorded to the inherently private nature of all consensual adult sexual activity. The court supported the view of Martin J. Siegel that sexual experience offers self-transcendence, expression of private fantasy, release of inner tensions, and meaningful and acceptable expression of regressive desires to be again the free child-unafraid to lose control, playful, vulnerable, spontaneous, sensually loved. Thus, the developed jurisprudence shows that the court has admitted that a human being deserves a right to have sex provided it is consensual and does not include any inducement. Having specified and licensed brothels would help the citizens exercise their right without any fear. Since, the right to have sex is not yet recognized expressly by the Courts, this is considered as an immoral activity in our society if a person performs it outside their marital relationship. Thus, if a person procures the services of a prostitute for his sexual intercourse, which undoubtedly is a biological need of everyone, they get blackmailed subsequently by the prostitute or brother keeper. There have been many instances when they try to procure money against the deal of not disclosing this activity to their family members. Therefore, if this right is expressly recognized by the Courts, it would seem normal to the community that the procurement of services of prostitute for the sexual intercourse is just a biological need and there is nothing wrong or immoral in seeking it.
Conclusion
Thus, it seems that the bill, although salutary as it intends to eradicate the evil of human trafficking from the country and also seeks to provide supportive legal, economic and social environment for the people who are forced to join it, is an evil for the poor people who join it consensually and adopt this profession as a source of money. The bill prohibits the engagement of middlemen rather than regulating the engagement of middlemen. Most importantly draft bill also widens the definition of the “victim” by including transgender persons, besides women and children. However, the only issue arises is it does not take into account the consent of the sex workers. This can be militated if the legislature puts reasonable restrictions as suggested in the article.
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